THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  SELECTION 


LEADING  CASES  IN  EQUITY. 


^mttlt  UoUs, 


YOL.  I. 

PART    FIRST. 

BY 

FKEDERICK  THOMAS  WHITE, 

ANT) 

owe:n^  dayies  tudor. 

(OF  THE  MIDDLE  TEMPLE,   ESQRS.,   BARRISTERS-AT-LAW.) 

TOGETHER  WITH  NOTES  AND  AMERICAN  CASES 
BY 

FRANKLIN  S.  DICKSON,  LL.  B. 


FROM  THE  SIXTH  (1886)  EDITION. 


PHILADELPHIA  : 
THE  BLACKSTONE   PUBLISHING  COMPANY 

1888. 


Entered  according  to  the  Acts  of  Congress,  in  the  year  1888,  by  the  Black- 
stone  Publishing  Company,  in  the  oflBce  of  the  Librarian  of 
Congress,  at  Washington,  D.  C. 


T 


(«) 


•  \ 


NOTE. 

We  suggest  to  our  patrons  that,  to  facilitate  the  labor  of  the 
Judges  and  Reporters,  they  cite  the  TOP  PAGING  of  books  of 
our  SERIES,  and  add  [TEXT  BOOK  S^RIBS.]— Editor. 


(iii) 


^^bV6Si- 


(iv) 


PREFACE. 

TO  THE  FIRST  EDITION  OF    VOL.   I. 

The  plan  of  this  work  was  suggested  by  the  very  able 
volumes  of  the  late  Mr.  John  William  Smith,  which  con- 
tain a  selection  of  Leading  Cases  principally  taken  from 
the  Common  Law  Reports;  and  it  was  thought  that  it  might 
be  useful  to  the  j)rofession  to  have,  within  a  small  compass, 
a  selection  of  Leading  Cases  decided  in  Courts  of  Equity. 

Each  of  the  cases  chosen  will,  it  is  believed,  be  found 
either  to  be  frequently  referred  to  in  practice,  or  to  enunci- 
ate clearly,  for  the  lirst  time,  some  important  principle  of 
equity. 

A  chronological  arrangement  of  the  cases  has  not  been 
observed,  because  it  has  been  in  the  present,  and  may  be  in 
a  subsequent  volume,  found  useful  to  print  together  cases 
on  the  same  subject,  decided  at  different  periods. 

The  notes,  or  abstracts  prefixed  to  the  cases,  have  occa- 
sionally, when  inaccurate  or  defective,  been  altered;  and, 
in  some  instances,  the  arguments  and  judgment  in  the  same 
case  are  taken  from  different  reports.  Thus,  in  the  well- 
known  case  of  Fox  v.  31ackret7i,  the  arguments  are  taken 
from  Brown's  Chancery  Cases,  and  tlie  judgment  from 
Cox's  Reports;  and  in  the  celebrated  case  of  Garth  v.  Col- 
ion  (a  complete  report  of  which  is  not  to  be  found  else- 
where), the  arguments  are  taken  from  two  different  places 
in  Vesey  Senior's  Reports,  the  judgment  from  Dicken's 
Reports,  and  the  decree  from  Atkyn's  Reports. 

(V) 


Vi  PREFACE. 

In  the  notes  an  attempt  has  been  made  to  develop  the 
principles  laid  down  or  acted  upon  in  the  cases,  and  to  col- 
lect the  recent  authorities;  but  as  the  nature  of  the  work 
would  not  permit  that  the  notes  should  be  complete  essays 
upon  the  different  subjects  treated  of,  they  have  been  prin- 
cipally confined  to  the  points  decided  in  the  cases,  to  which, 
in  fact,  they  are  only  intended  to  be  subsidiary. 

It  will  be  seen  that,  in  the  notes,  some  cases  of  import- 
ance are  stated  at  considerable  length,  and  that  when  it  was 
convenient  or  practicable,  the  very  words  of  the  Judges 
have  been  preserved. 

Of  imperfections  and  deficiencies  in  the  notes,  the  Editors 
are  by  no  means  unconscious,  but  they  venture  to  hope  that 
the  cases  (the  selection  of  which,  from  a  great  mass  of  the 
Equity  Reports,  was  a  matter  of  no  small  difficulty)  will 
prove  useful  both  to  students  and  to  those  in  actual  practice. 

Jvly,  1849. 


ADVERTISEMENT 

TO  THE  SIXTH  EDITION. 

In  preparing  this  Edition,  much  new  matter  has  been 
added  to  the  Notes.  A  very  large  addition  has  also  been 
made  to  the  cases  cited,  which  have  been  brought  down  to 
the  latest  period. 

The  effect  of  recent  important  legislation,  such  as  the 
Vendor  and  Purchaser  Act,  1874;  the  Conveyancing  Acts, 
1881  and  1882;  the  Married  Woman's  Property  Act,  1882; 
the  Settled  Land  Act,  the  Bankruptcy  Act,  1883,  have, 
amongst  others,  been  carefully  considered,  and  when  neces- 
sary noticed  and  commented  on. 

In  the  second  volume,  the  case  of  Leclimere  v.  Lady 
Lechmere  (Ca.  t.  Talbot,  26),  has  been  substituted  for  Wil- 
cocls  V.  Wilcocl'S  (2  Vern.  558).  Mr.  Trustram,  of  Lincoln's 
Inn,  has  j-endered  valuable  assistance  towards  the  revision 
of  the  latter  part  of  Vol,  2  when  it  was  passing  through 
the  press. 

Feb.,  1886. 

:n^otice. 

In  making  additions  to  White  and  Tudoes  Leading 
Cases  in  Equity,  Mr.  Dickson  has,  by  the  use  of  brackets 
[  ],  distinguished  all  his  additions,  otherwise,  this  is  a  ver- 
batim reprint  of  the  Sixth  (1886)  Edition,  being  12  years  later 
than  the  last  Amekican  Edition,  and  17  years  later  than 
the  Fourth  English  Edition  from  which  the  last  American 
Edition  was  reprinted. 

BLACKSTONE  PUB.  CO. 

Philadelphia,  Pa.,  Oct.  1,  1S88. 

(vii) 


(viii) 


LIST  OF  CASES  EEPORTED. 


[The  paging  refers  to  the  [•]  pages.  ] 

PAGE 

AcKROYD  V.  Smitiison   (Resulting  trust,  on  failure  of  the 

purposes  for  which  conversion  has  been  directed)  .  1027 

Aleyn  v.  Belchier  (Fraud  upon  a  power) 437 

Ancaster  (Duke  of)  v.  Mayer  (Primary  liability  of  per- 
sonal estate  to  payment  of  debts — Exoneration)      .    723 
Chesterfield  (Earl  of)  v.  Janssen  (Post-obit  securities — 
Catching  bargains  with    heirs,  expectants,  and  re- 
versioners— Confirmation) 624 

Cuddee  v.  Rutter  (Specific  performance  of  agreements  re- 
lating to  personal  property)      907 

Dering  v.  Earl  of  Winchelsea  (Contribution  between  co- 
sureties)      114 

Dyer  v.  Dyer  (Purchase  in  the  name  of  a  child — Advance- 
ment— In  the  name  of  stranger — Resulting  trust)  .    236 
Elibank  (Lady) -y.  MoNTOLiEU  (Wife's  equity  to  a  settle- 
ment)       486 

Elliot  v.  Merryman  (Liability  of  a  purchaser  to  see  to  the 

application  of  the  purchase-money) 72 

Ellison  v.  Ellison  (Voluntary  trusts) 291 

Fletcher  v.  Ashburner  (Conversion) 968 

Fox  V.  Mackreth  (Purchase  by  a  trustee  for  sale)  ....    141 

Garth  v.  Cotton  (Equitable  waste) 806 

Glenorchy  (Lord)  v.  Bosville  (Executed  and  Executory 

trusts)     1 

HuLME  V.  Tenant  (Wife's  separate  estate) 536 

Keech  v.  Sandford  (Renewal  of  a  lease  by  a  trustee  in  his 

own  name — Constructive  trust) 53 

Lake  v.  Craddock  )     /  t  •   .  -,  ^     { 217 

-,  ^  (Joint  purchasers) 

Lake  v.  Gibson      S  '    i 215 

(ix) 


X  LIST  OF  CASES  REPORTED. 

[The  paging  refers  to  the  [»]  pages.  ] 

PAGE 

Legg  v.  Gold  wire  (Executed  and  executory  trusts — Recti- 
fication of  settlement  by  articles) 17 

Lester  v.  Foxcroft   (Part  performance  of  parol  contract 

respecting  land)   ." 881 

Mackreth  v.  Symmons  (Vendor's  lien  for  unpaid  purchase- 
money)   355 

Marsh  v.  Lee  (Tacking  incumbrances) 696 

Murray  v.  Lord  Elibank  (Wife's  equity  to  a  settlement)  493,501 

NoYS  V.  Mordauxt  (Election) 395 

Pitt  v.  Mackreth  (Purchase  by  a  trustee  for  sale)  .  .  .  141 
PusEY  V.  PusEY  (Specific  delivery  up  of  chattels)  ....  961 
Russel  v.  Russel  (Equitable  mortgage  by  deposit  of  title 

deeds) 7T3 

Somerset  (Duke  of)  v.  Oookson  (Specific  delivery  up  of 

chattels) 962 

Strathmore  (Countess  of)  v.  Bowes  (Fraud  on  marital 

rights) 471 

Streatfield  v.  Streatfield  (Election) 397 

Tollet  v.  Tollet  (Defective  execution  of  a  power  aided)  269 
Ward  ^;.  Turner  (Donatio  mortis  causa) 1058 


INDEX 


THE  NAMES  OF  CASES  CITED. 


CThe  paging  refers  to  the  [']  pages.] 


Abbot  v.  Burton,  845 

V.  Gibbs,  7.'5 
Abbott,  Ex  parte,  aoO 

V.  Geraghty,  52 
t'.  Stratton,  792 
Abeiuman   Iron    Works    v.   Wickens. 

392,  393 
Aberdeen       Eailvvay       Company       r. 
Blackie,  181 
Town  Council  v.  Aberdeen 
University,  58 
Abinger  (Lord)  v.  Clayton,  933 
Abnev  v.  Miller,  54 
Abrahal  v.  Bubb,  808,  815,  840,  841, 

86:5.  867 
Abraham  r.  Newcombe,  528 
Acheson  r.  Fair,  62 
Ackrovd  v.  Smithson,  972,  1022.  1027, 

104i,  1043,  1047,  1048 
Acraman  v.  Corbett,  343,  346 
Acton  V.  White,  610 

r.  Woodgate.  303,  305 
Adair  v.  Shaw,  589,  590 
Adam's  Policy  Trusts,  In  re,  556 
Adames'  Ti'usts,  Ixxv 
Adanies  v.  Hallett,  349 
Adams  and   the    Kensington    Vestry, 
In  re  1003,  1004 
T.  Claxton,  721,  782 
V.  Clifton,  214 
V.  Gamble,  564 

r.  Loudon  and  Blackwall  Kail- 
way  Co.,  914,  985 
V.  Mevrick,  728,  737 
V.  Sword  er,  199 
Adamson  v.  Armitage,  548 
Adderlev  i'-  Clavering,  63. 

r.  Dixon,  914,  918 
Addis  r.  Campbell,  (i79,  680j  694 
Adlington  v.  Cann.  902.  904,  905 
Adney  r.  Field.  282. 
Adsetts  r.  Hives,  796 
Advocate-General  r.  lianisoy's  trustees, 
994  ■ 
1-.  Smith.  995 


Affleck  c.  Affleck,  272,  274 

Affleck  V.  James,  994 

Agar  V.  Macklew,  944 

Agassiz  V.  Squire,  455 

Agra  Bank  (Lim.)  v.  Barry,  795,  797 

Aguilar  r.  Aguilar,  533,  572,  574,  602 

Aherne  v.  Hogan,  191 

Ainslie,  In  re;  Swinburne   v.  Ainslie, 

874,  Ixxviii 
Ainsworth.  Ex  parte,  rt  Goren.  792,  799 
Airey  v.  Hall,  309 
Albert  Life  Assurance  Company,  In  re, 

383 
Albion  Steel  and  Wire  Co.  c.  Martin, 

181 
Alcock  r.  Alcock,  583 
Aldborough  (I^ord)  v.  Tyre,  685,  686 
Alder  v.  Fouracre,  59,  1 96 
Alderson  v.  IMaddison,  896 
Aldred's  Estate.  In  re,  983 
Aldrich  r.  Cooper,  128,  387.  622.  772 
Aldridge,  Ex  parte,  554 

V.  Wallscourt,    i  Lord),  742, 
744 
Alen  V.  Hogan,  757 
Alexander,  Ex  parte,  198,  800 
Be,  139 
V.  Brame,  334 
r.  Cross,  Ixxix 
V.  M'Culloch.  502,  534 
V.  Young.  610 
Alevu  r.  Belehier,  437,  443,  452,   455, 

463,  465 
Allan  r.  Gott,  741,  748 
Alldav  r.  Fletcher,  529 
Allen'  r.  Allen,  764,  771 

r.  Anderson,  413,  419 
r.  Backhouse,  63 
V.  De  Lisle,  130,  134 
v.  Graves,  925 
V.  Knight.  390.  706,  715 
V.  Papworth.  540,  568 
Allen  V.  Walker,  564,  565,  600,  603 
Allerton  c.  Knowell,  532 
Allevue  v.  Allevne.  262 


(xi) 


xu 


TABLE    or    CASES. 


[The  paging  refers 
Allison  V.  Monk wearmon til,  i)A'i  i 
AUnutt.  In  re.  1^6 
Alt  V.  Alt.  895 

Altraan  v.  Royal  Aquarium  Society-,  951 
Alton  t:  Harrison,  346 
Ambler  r.  Bolton,  225 
Ambrose  Lake  Tin  and  Cop^jer  Mining 
Co.,  In  re;  Ex  parte  Taylor,  183,  195 
Amis  V.  Witt,  1084 
Amler  v.  Amler,  989 
Amphlett  v.  Parke,  1044,  1052,  1055 
Anandale  v.  Anandale,  1015 
Ancaster  (Duke  of)  v.  Mayer,  723.  744, 

753 
Anderson  v.  Abbott,  409,  416,  433 

V.  Kemshead,  792,  803 
Anderton  v.  Cooke,  726,  729,  744 
Andrew  v.  Andrew,  .376 

V.  Trinity  Hall.  417 
V.  Wiigley,  106,  111,  112 
Andrews,  In  re,  Ixxvii 
Andrews  v.  Hailes,  58 
Anglo- Australian,  &c.  Co.    v.    British 

Provident  Soc,  944 
Anglo-Italian  Bank  v.  Da  vies,  712 
Anonymous,  24, 197,  237,  242,  249,  288, 
340,  417,  433,  504,  52.5,  564,  710,  713. 
721,  722,  847,  867,  897,  902,  940,  951, 
1017. 
Anstruther  v.  Adair,  526 
Antrobus  v.  Smith,  313,  314,  327,  328 
Anwyll  V.  Owens,  864 
Apharrv  v.  Bodingham,  345 
Aplin's" Trust,  Be,  428 
Appleton  V.  Rowley,  597 
Ap  Rice's  (George)  case,  858 
Arcedeckne,    In    re;  Atkins   v.    Arce- 
deckne,  120,  125,  126 
r.  Howard  (Lord)  122 
Archbold  r.  Howth  (Lord),  889 

V.  Scully,  57 
Archer's  case.  8,  827,  828 
Archer  v.  Hudson,  207 
V.  Lavender,  596 
V.  Rorke,  545,  546 
V.  Suatt,  721 
Ardesoife  v.  Bennett,  406,  431,  433 
Ardgla.sse  (Lord)    v.  Muschamp,   630, 

634,  655,  674 
Arkwright,  Ex  parte,  783 
Arraitage  v.  Baldwin,  131 
V.  Coates,  611 
V.  Wadsworth,  965 
Armstrong  v.  Armstrong,  211,  246,  931, 

932 
Armstrong  v.  Cahill,  124 
V.  Lynn,  427 
Arnold  v.  Arnold,  296 

V.  Chapman.  1049 


to  the  [•]  pages.] 
Arnold  v.  Hardwick,  444,  453 
v.  Kempstead,  420. 
V.  Woodhanis,  607 
Arthur  *•.  Arthur,  547,  579,  580 
V.  Clarkson,  310,  333 
V.  Lamb,  871 

V.  Midland  Railway  Company, 
254 
Arundell  r.  Phipps,  964 
Ashburner  v.  jMacguire,  749 
Ashburnham  v.  Ashburnham,  432 
Ashburton  v.  Ashburton,  1018 
Ashby  f.  Ashby,  748 

V.  Palmer,  984,  992,  1005,  1010 
Ashton  V.  Ashton,  32 

V.  Corrigan,  929 
V.  Dal  ton,  784.  789,  790 
V.  Dawson,  1083 
V.  M'Dougall,  477,  483,  484,  599 
Ashurst  V.  Mason,  121,  124 
Ash  worth  v.  Outram,  551,  552,  555,  604, 

Ixxv 
Askew  V.  Rooth,  596,  598 
Askham  r.  Barker,  444,  447 
Aspinwall  v.  Leigh,  820 
Astbury,  Ex  p)arte,  785,  786 
Astley  r.  Taukerville  (The  Earl    of), 

752,  7.53 
Aston  v.  Aston,  863,  867 

r.  Wood,  417 
A.stry  V.  Astry,  465 
Atcheson  v.  Atcheson,  531 
Atchison  r.  Le  Mann,  564 
Athertou  v.  Knowell,  489,  532,  533 
Athill  V.  Athill,  770 
Atkins  r.  Arcedeckne,  120,  125,  126 
v.  Delme 
r.  Farr,  644 
Atkinson  v.  Smith,  338 
Att.-Gen.  v.  Bacchus,  531 

•{'.  Brunning,  233.  996 

V.  Burdet   273 

V.  Cashel  (Corp.  of),  177 

V.  Clarendon  (Earl  of),  177 

V.  Dav,  887,  893,  899 

V.  Dillon,  903 

V.  Dixie,  177 

V.  Dudley  (Lord),  176,  209. 

211 
V.  Gains,  70 
V.  Hardy,  189 
r.  Harlev,  988 
Att.-Gen.  v.  Holford,  994 

V.  Hubbuck,  233,  996 
V.  Jackson,  898 
V.  Johnstone,  1057     • 
V.  Jones,  1070 
V.  Lomas,     233,     99;;.     997 
1045.  1046 


TABLE  OF  CASES. 


XIU 


[The  paging  refers 
Att.-Gen.  r.  Manp;los.  005 

('.  I\Iaill)or()ii^h    (Duke  of), 

V.  Mid-Ki'iit  Ivaihv.ay  Com- 
pany aiul  South  Coast 
Kail  way  Compauj',  930, 

9:n 

V.  Miliier,  1049 
V.  Newcastle  (Corp.  of),  334 
V.  Parkin,  749 
V.  Parutlier,  581 
V.  Plvniouth  (Corp.  of),  177 
V.  Potter,  108 
V.  Kve,  273 
V.  Sibthorpe,  273 
r.  Sinicox,  995 
v.  Sittingbourne,  &c..  Rail- 
way Company,  378 
}'.  Stamfonl  (iMayor  of),  177 
V.  Tancred,  273 
V.  Tomline,  58 
V.  Weymouth   (Lord),    988, 

1042 
V.  Yoitng,  6 
Attwood,  Ex  parte,  198 

V.  Chichester,  541,  583,  604 
Atwell?-.  Atwell,  989,  991,  993 
Aubin  V.  Holt,  942 
Aubrey  v.  Brown,  519 
Aulton  V.  Atkins,  334 
Auriol  V.  Smith,  948 
Austen  v.  Halsey,  357,  362,  368,  375 

V.  Taylor,  18,  19,  20,  31 
Austin  V.  Austin,  547 

V.  Chambers,  200 
V.  Martin,  105 
Aveling  v.  Knipe,  222,  224,  251 
Awdley  v.  AAvdley,  1017 
Ayerst  v.  Jenkins,  254 
Ayles  V.  Cox,  986 
Aylesford's  (Earl  of)  case,  886 

V.  Morris,  676,  677, 
682,    688,      689, 
692,  693 
Aylettr.  Ashton,  541,  584 

Barber's  Trusts,  In  re,  306 
Back  V.  Andrew,  255,  260 
Backhouse  v.  Charlton,  801 

V.  Wells,  7,  8,  11,  15 
Bacon  r.  Cosby,  409,  416 
Badcock,  Ex  parte,  176,  198 

Re,  49,  895,  1015,  1017 
Baddeley  v.  Baddeley.  317 
Baden  r.  Pembroke  (Earl  of),  976 
Bage,  Ex  parte,  198 
Baggett  V.  Meux,  564.  605,  609 
Baglehole,  Ex  parte,  798 
Bagnall  v.  Carlton,  185 


to  the  [*]  pages.] 
Bagnell  r.  Edwards,  9.39 
Bagot  V.  Bagot  755.  75r),  856,  871,  873, 
876,  880 
V.  Oughton.  755 
Bagshaw  i-.  Downes,  4 

V.  Spencer.   4,  18,  19.  .32 
V.  Winter,  519,  522.  523 
Bagsterv.  Fackerell.  1046 
Baile  a.  Coleman.  :'.,  5,  9,  10,  11,  13,  17 
Bailey  v.  Collett,  259 

V.  Elkins,  H9      . 
r.  Hobson,  872 
Baker's  Trusts,  In  re,  577 
Baker  t'.  Balydon,  518 
r.  Bent,  679 
r.  Bradley,  212,  608 
V.  Carter.  176,  197,  211 
V.  Hall,  1050 
V.  Harris,  716,  720,  721 
V.  Kerr,  563 

V.  Metropolitan  Railway  Co.,  914 
V.  Monk,  208 
V.  Peck,  177 
V.  Read,  197,  212 
V.  Sebright,  875 
Baldwin  v.  Baldwin.  518 
V.  Rochford,  685 
Balfour  v.  Wclland,  81,  83 
Balgney  v.  Hamilton,  249 
Ball  V.  Burnford,  338.  340 
V.  Coggs,  017,  CI 8,  940 
V.  Coutts,  528,  530 
V.  Harris,  88,  C9,  96.  99 
V.  Montgomery.  480,  530.  534 
Balmain  v.  Shore,  230 
Bamfield  v.  Popham,  7 

V.  Wyndham,  726,  727,    745 
Bank  of  England   case,  227 

London  r.  Tyrell.  192,  202 
Whitehayen  v.  Dawson,  128 
Bankes  r.  Le  Despenser,  34,  47 
Bankhead's  Trusts,  Be,  783 
Banks  r.  Banks,  411 
V.  Scott,  1013 
V.  Sutton,  485,  977 
Barclay,  Ex  parte,  786.  788 

r.  Russell.  1057 
Barden  (Jane),  in  the  goods  of,  988,997 
Bard  well  r.  Lydall,  137,  139 
Barham  r.   Clarendon    (Earl  of),   757, 
758 
V.  Thanet  (Earl  of).  755,  756, 
758 
Barker  In  re,  1016,  1023 
r.  Barker,  385 
V.  Deyon  (Duke  ot),  83 
t".  Lea,  518 
t:  Smark,  391 
V,  Vansommer,  680 


XIV 


TABLE    OF    CASES. 


[The  paging  refers 
Barkworth  >:  Young,  346,  894 
Bailee  v.  Bailee,  571 
Barling  r.  Bishop,  345 
Barnard's  (Lord)  case,  863 
Barnard  v.  Ford,  5'29 

V.  Hunter,  200 
Barnardiston  v.  Lingood,  678 
Barnes  v.  Robinson,  510 

V.  Vincent,  289,  290 
Barnett,  Ex  parte,  776 

V.  Weston,  703,  707,  720 
Barnewell  v.  Iremonger,  392,  762,  768 
Barnhard  r.  Greenshields,  897 
Barny  v.  Beak,  630,  678,  680 
Barrack  v.   M'Culloch,  267,   342,  546, 

582.  599 
Barren,  Ex  parte,  He  Parnell,  394 
Barrett  v.  Blagrave,  950 
Barrett,  Ex  parte,  129 

V.  Hartley,  687 
Barrington,  Ex  parte,  933 

i:  Hereford,  1050 
Barron  v.  Constabile,  274,  279 
Barrow  v.  Barrow,  433,  515,  533 
V.  Greenough,  903 
V.  Griffith,  92 
V.  Manning,  530 
V.  Wadkin,  988 
Barrs  v.  Fewkes,  1044 
Barry  v.  Harding,  756,  757 
Bariymore  r.oEllis,  609 
Bartholomew  v.  IMay,  752 

V.  Meredidith,  459 
Bartlett  v.  Gillard,  579 

V.  Pickersgill,  247,   248,  249, 
251,  1160 
Barton  r.  Muir,  247 

I'.  Vanheythuysen,    348,     344. 
348,  350 
Barwell  v.  Barwell,  197,  212 
Baskerville  v.  Baskerville,  33 
Baskett  v.  Cafe.  190 

'V.  Skeel,  804 
Bass  r.  Cliveley,  929 
Bassett  r.  Percival,  755 
Bastard  v.  Froby,  18,  29,  32 
Batard  v.  Hawes,  121 
Batchelor  v.  Lawrence,  134 
Batemant;.  Hotchkin,  855,  873 

V.  Roden  (Lord),  746,  748,  749 
Bates  V.  Dandy,  491 

V.  Johnson,  703,  704,  705 
Bath  (Earl  of)  v.  Earl  of  Bradford,  1008 
Bathe  v.  Bank  of  England,  554 
Bathurst  v.  Murray,  528 
Batstone  v.  Salter,'252,  253,  257,  259 
Battersbee  v.  Farrington,  337 
Battersby  v.  Homan,  792 
V.  Smith,  930 


to  the  [•]  pages.] 

Battersea    Park  Acts,    Be;    Ex   parte 

Arnold,  984 
Batteste  v.  ISIaunsell,  992,  1023 
Batthyany  r.  Bouch,  931 
Batty  V.  Lloyd,  6.30,  646,  685 
Baugh  V.  Price,  152,  209,  693 
Baumann  r.  James,  901 
Bawtree  v.  Watson,  676,  679,  693 
Bax  V.  Whitbread,  466,  467 
Baxter  v.  Conolly,  941 
Bayliss's  Trusts,  In  re,  548 
Bayly  v.  Robson,  722 
Baynard  v.  Woolley,  781,  789,  796 
Baynton,  Ex  parte,  199 

V.  Collins,  5.57,  Ixxv 
Bayspool  v.  Collins,  339 
Beaden  v.  King,  180.  204,  205,  211 
Beak  v.  Beak,  1082  ' 
Beal  V.  Billing,  179,  200 
Beale,  In  re;  Ex  parte  Corbridge,  551 
Beales  v.  Spencer,  550 
Beatson  v.  Beatson,  320,  1206 
Beauclerk  r.  Mead,  997 
Beaumont  Mortgage  Trust,  In  re,  283, 

993 
Beaumont  v.  Carter,  523 
Beaven  v.  Oxford  (Lord),  335,  711 
Becher's  case,  628 
Bechervaise  v.  Lewis,  128 
Beck  V.  Andrew,  237 

V.  Kantorowicz,  195 
Beckett  v.  Cordley,  368,  718 
Beck  ford  v.  Beckford,  255 
Beckley  v.  Newland,  647,  685 
Bective  v.  Hodgson,  1043 
Beddoes  v.  Pugh,  444,  453 
Bedell,  In  re,  136 

Bedford  (Duke  of)  v.  Abercorn,  (Mar- 
quis of),  44 
V.  Backhouse,  713 
V.  Bedford,  741,  1044 
V.  Trustees  of  British  Museum, 

956 
V.  Woodham,  111 
Bedingfield  v.  Ashley,  640,  651 
Bedwell  r.  Froome,  237,  242 
Bee  V.  Stafford.  &c..  Railway  Co.,  912 
Beech  v.  Keep,  322 
Beecher  v.  Major,  244,  256 
Beere  v.  Hoflfmeister,  460 
Begbie  v.  Fenwick.  788 
Beilby,  Ex  parte,  549 
Belchier  v.  Butler,  703,  717 

V.  Renforth,  703,  717 
Bell,  Ex  parte,  352 

V.  Blyth,  932 

V.  Free,  123 

V.  Phyn,  233 
Bellamy's  case,  643 


TABLE   OF   CASES. 


XV 


[The  paging  refers 
Bellamy  r.  Sal.iiio,  200,  68." 
Jiellasis's  Trust,  In  re,  25 
liellasis  r.  Conipton,  254 
Bellringer  v.  Bhigrave,  284 
Belvidere  v.  Kochlbrt  (Lord),  752,  757 
Benbow  v.  Townsend,  253 
Bench  v.  Biles.  4(58 
Bending  v.  Bending,  420,  424 
Bendvshe,  In  re,  508,  524 
Bengal  (Bank  of)  v.  Macleod,  194 
Benger  v.  Drew,  237,  242 
Benham  v.  Keane,  711 
Bennet,  Kv  parte,    176,  177,   199,  209, 
211 
V.  Bennet,  2.57 
V.  Davies,  538,  545 
Bennett  v.  Biddies,  528 
V.  Colley,  213 

V.  Houldsworth,  408,  409,  432 
Benson  ti  Benson,  615,  1008 

t'.  Heathorn,  181 
Bentham  v.  Wiltshire,  99 
Beotley  v.  Craven,  195 

V.  Mackay,  49,  311 
Benton,  In  re,  606 
Benyon  v.  Fitch,  678,  679,  693 
Beresford  v.  Armagh  (Apd.  of),  579 
(Lady)  v.  Criver,  965 
V.  Hobson,  519 
Berkeley  r.  Hardy,  329 
Bermingham  v.  Sheridan,  927 
Bernal  r.  Donegal  (Lord),  686 
Bernard's  (Lord)  case,  863 
Bernard,  Ex  parte,  426 
Berny  v.  Pitt,  630,  645,  653,  659,  672, 

678 
Berry  v.  Gibbons,  106. 

V.  Usher,  1042,  1053 
Bertie  v.  Chesterfield  (Lord),  595 
Berwick  (l\Iavor  of)  v.  Murray,  121 
Besant  r.  Wood,  942 
Bessant  i\  Noble,  746 
Bestall  V.  Bunbury,  565 
Bevan's  case.  1015 
Be  van  v.  Ilabgood,  205 
Bewick  v.  Whitfield.  813,  877 
Bevfiis  V.  Bullock,  346 
Beynon  v.  Cook,  676,  677,  682,  686,  687, 
690,  693,  694 
t.  Gollins,  84 
Biddv  r.  Coulter,  1080,  1081,  1083 
Bickiiam  c.   Cruttwell,  734,    749,  752, 

753 
Bickley  r.  Guest,  462 
Biddies  r.  Jackson.  524 
Biddulph  V.  Biddulph.  977 
Bidwell's  Settlement,  /iV,  411 
Biel's  Estate,  In  re,  197 
Biggs  V.  Andrews,  984,  1047 


to  the  [•]  pages.] 
Biggs  r.  Peacock,  993 
Bigland  r.  Huddlestone,  409,  416,  4.32 
Bignold,  Kx  parte,  800 
Bill  V.  Cureton,  302,  304,  3.37.  353 
Billinghurst  r.  Walker,  7.55,  757 
Binks  r.  Kokeby,  80 
Birch  V.  lilagrave,  264 
V.  El  lames,  794 
Birch-Walfe  v.  Birch,  814,  853,  877,  879 

V.  Wolfe,  876 
Bird's  Trusts,  In  re,  52 
Bird  r.  Fox,  90 

V.  Peagram,  596 
Birds  V.  Askej,  249,  386 
Birkett  v.  Ilibbert,  528 
Birley  v.  Birley,  451 
Birmingham  v.  Kirwan,  409,  415,  420, 

421 
Birney  v.  Tison,  630 
Biron  v.  Mount,  307 
Birt,  In  re;  Birt  v.  Burt,  202,  249 
Biscoe  V.  Kennedy,  538,  539,  589 
Bisdee,  Ex  parte,  784,  785 
Bishop,  Ex  parte;  In  re  Tonnies,  3.52 
V.  Bishop,  877 
V.  Talbot.  904 
V.  Wall.  562,  568 
Bixby  V.  Eley,  272 
Bizzey  v.  Flight,  417 
Blackburn  v.   Gregson,   359,   361,  368, 
373,  381 
V.  Stables,  18,  20,  29 
Blacket  v.  Lamb,  311,  428 
Blackett  v.  Bates,  934,  935,  949,  950 
Blackford  v.  Kirkpatrick,  888 
Blaeklow  v.  Laws,  550 
Blackwell  v.  Svmes,  708 
Blagden,  Ex  parte,  492,  534 

V.  Bradbear,  892,  893 
Blagrove  v.  Hancock,  44 
Blaiklock  %\  Grindle,  418 
Blake  r.  Blake,  70 

V.  Bunbury,  405,  406,  409,  410, 

412.  413 
V.  French,  277 
I'.  Peters,  860 
Blakely  v.  Brady,  319.  320 
Blanchet  v.  Foster,  484 
Bland  v.  Bland,  275. 
V.  Dawes,  546 
Bland  r.  Wllkins.  1050 
Blatchford  v.  Woolley,  563,  569 
Blenkinsopp  v.  Blenkinsopp,  345 
Blennerhasset  v.  Day,  188,  204 
Blewett  V.  Millett.  55,  61,  62,  63 
Bligh  r.  Brent,  230 
Blockvill  r.  Ascott,  288 
Blonmart  v.  Player,  413 
Blore  v.  Sutton,'278,  287,  893,  910 


XVI 


XABLE   OF   CASES. 


[The  paging  refers 

Blount  V.  Bestland.  4SS 

V.   Burrow.    1078,    1080,    1083, 

10S7 
f.  Hipkins,  743 
Bloye's  Tiust.  Jii  re,  176,  177,  187.  203 
Blunt  V.  Lack.  433 
Boardiuan  r.  Mostyn.  892,  900 
Bodilington  v.  Langlbrd.  177 
Bodeuliam  r.  Hoskyus.  113 
Bodsier  c.  Bodger.  803 
Bold  I".  Hutchinson,  18,  49,  51 
Bolland.  Exporte:  In  re  Clint,  346 

r.  Bygrave.  791 
Bolton  V.  Bolton.  328 
r.  Puller.  791 
r.  Staunard.  101 
V.  'Williams.  572 
Bond  r.  England.  7t>0 
r.  Hopkins,  885 
r.  Kent.  358.  363.  366.  384 
r.  Simmonds.  503.  531 
Bone  r.  Pollard.  223,  259.  263 
Bonlield  r.  Hassell,  326,  334.  510.  Ixxiv 
Bonner  v.  Bonner.  529 
Bonnev  v.   Kidg-ard,  75,  77,   106,   109. 

110."ll2 
Booker,  Jn  re.  Ixxiv 
Booth  r.  Pollard.  933 

V.  Turle.  897 
Boothbv  r.  Boothhv.  679.  686.  693 
Bootle  ■(•.  Bluudell.  734.  740,  742.  744, 

745.  747.  752,  753 
Bor  r.  Bor,  406.  409.  415.  432 
Borrett  r.  Gonieserra.  886 
Bosanquet  r.  Dash  wood.  632 

r.  Dudnian,  791 
Bostock  r.  Blakeney,  i82,  983 
Bosvil  I-.  Brander,  488,  508 
Boswell  V.  Coakes,  208 

r.  Dillon,  18.  19 
r.  Gurney.  772 
Bougbton  V.  Bougbton,  418,  432.  740. 
742.  748 
f.  James.  742 
Bonlton.  Ex  parte,  Be  Sketcbley,  775, 

776 
Bourdillon  r.  Adair.  524 
Bourne  r.  Bourne.  993.  993 
Boutts  f.  Ellis,  1083 
Bovey  r.  Skipwortb.  706.  707 
Bowen  r.  Barlow.  1003 
Bowen  r.  Evans.  213 
Bowers  v.  Cater,  887 
Bowers  r.  Shrewsbury  lEarl  of\  981 
Bowes  f.  Heaps.  678,  693 

V.  Law.  951 
Bowker  r.  Bull.  127,  128.  720 
Bowles's  ( Lewis)  case.  9.  810.  816.  836. 
852,  854,  857,  862,  863,  667 


to  the  :*]  pages.] 
Bowles  r.  Kogers.  391 

r.  Stewart.  55.  62.  63,  64 
Bowman  r.  Hyland.  958 
Bown  In  re,  606.  607.  620 
Bowring  v.  Shepherd.  924,  925 
Bowver  v.  Woodman.  1005 
BoxV.  Barrett.  408,  410 
V.  Box.  527 
r.  Jackson.  527 
Boxall  V.  Boxall.  520 
Boxon  V.  Statbam,  904 
Boycot  r.  Cotton.  459 
Bovd,  Exparte,  134 
i?t%  139 
r.  Barker.  204 
V.  Sborrock.  788 
Bores.   In   re:   Boves  v.   Carriu.   902. 

906 
Boyle.  Ex  parte.  716.  721 

V.  Peterborough  [The Bishop  of  i , 
467 
Bomton  r.  Bovnton.  420,  429 
Bozou  V.  Farlow.  941.  242 

V.  Williams.  794 
Brace  r.    ^lailborough    \Tbe    Duchess 
of).  360.  701,  706.  709.  712. 
713.  717.  720 
V.  Webnert.  934 
Brackenbury  r.  Brackenbury.  247 
Braddick  r.'Mattock.  276 
Bradford  (,Earl  of)   r.   Komney  {Eail 

of),  49 
Bi-adford  Banking  Co.  r.  Briggs  &  Co.. 

Ixxviii 
Bradisb  r.  Gee.  1009 
Bradley  v.  Hughes,  615 

r.  Eiches.  785 
Bramston  r.  Kiuaston.  6 
Bramwell  v.  Lacy,  951 
Braudaos  r.  Barnett.  791 
Brander  r.  Boles.  782 
Brandling  r.  Ord.  703 

r.  Plummer.  307 
Brandon  v.  Brandon.  126 
Brazier  v.  Hudson.  223 
Breadalbane   (Marq.    of)    r.    Chandos 

^Marq.  of).  49 
Brealey  r.  Collins,  921 
Brecon    i^Mavor  of^   v.  Sevmour.   712. 

716  ' 

Breedon  r.  Breed  on.  82 
Brenan  c.  Brenan.  25 
Brenton  v.  Lulham.  55.  57 
Brentwood  Brick  and  Coal  Co.,  In  re. 

383 
Breton's  Estate.  7m   re.  313.  317.  545. 

623 
Brett  V.  East  India  and  London  Ship- 
ping Co.,  941 


TABLE    OF    CASES. 


xvu 


[The  pa^ng  refers  to  the  [•]  pages.  1 


Brett  r.  Green  well,  519 
Brettle,  Ki\  (JOT 
Brewer  v.  Swirles,  575 
Brewster  t.  Aiij^ell,  4  t,  45 

r.  Clarke,  930 
Brice  t-.  Bannister,  324 

r.  Stokes:  576 
Bridge  r.  Bridge,  311,   321,  322,   325, 

3:M,  1207 
Bridgenian  v.  Dove,  740,  752 
Bridgend  Gas  and  Water  Co.  v.  Dun- 
raven,  Ixxviii 
Bridges  r.  Ix)ngman,  108 
Bridgnian  v.  Gill,  249 
Briggs  f.  Chamberlain,  1005 
r.  Jones,  795 

r.  Oxford  (Earl  ot),  857,  862 
Bright  V.  Larcher,  741,  1('53 
Brinckman  r.  Brinckmau,  622 
Briscoe  v.  Briscoe,  430 
Brisick  r.  Manners,  782 
Bristol  (Countess  of)    v.  Hungerford, 
1044 
(Earl  of)  v.  Hungerford,  717 
Bristnwe  v.  Warde,  407,  4G7 
Britain  r.  Rossiter,  896 
British  Empire  .Shipping  Co.  v.  Somes, 
944 
Mutual   Investment  Company 

V.  Smart,  105 
Provident    Life   &   Guarantee 
As-soc.,  Lire;  Be   Ruvigne's 
case,  183 
Seamless  Paper  Box  Co.,  In  re, 
183 
Britten  r.  Britten,  525,  581 
Broadbent,  Ex  pade,  779 
V.  Gro\es,  376 
V.  Tliornton,  307 
Broadwood,  E.r  parte,  786 
Broadwood's  settled  estates,  In  re.  1009 
Brodie  v.  Barry,  408,  419,  577,  578 

V.  Brady,  418 
Bromfield,  Ex  parte,  1015,  1017,  1018, 

1019 
Bromhall  v.  Wilbraham,  727 
Bromley  r.  Brunton,  301,  1082 
r.  Goodere,  1013 
r.  Smith,  678,  679,  693 
V.  Wright,  1045,  1053 
Brook,  Ex  parte,  137 

V.  Badley,  988,  1042 
Brooke  r.  Brooke,  599 
Brooke  r.  Hickes,  530 

r.  Mostyn  (Lord),  683 
(Lord)   r.  ^Yarwick   (Earl  of), 
740,  750 
Brookman  v.  Hales,  57 

V.  Rothschild,  194 
2  WHITE  ON    EQUITY. 


Broom  r.  Broom,  230 
Broome  r.  .Monck.  9H6 
Brough  r.  Oddy,  929 
Brougham  r.  Squire,  50 
Broughton  r.  Davies,  792 
Broun  v.  Kennedy,  51 
Brown's  Trust  Estate,  In  re,  284 

Will,  In  ri;  43 
Brown  r.  Adams,  249 
r.  Bamford,  609 
V.  Bigg.  9iy0.  1053 
V.  lihick,  924 
V.    Brown,   415,   416,  432,   965, 

1010,1011 
V.  Carter,  336 
V.  Clark,  514,  519,  532      ' 
r.  Collins,  526 
V.  Higgs,  1056 
t:  Jones,  335,  338,  340 
f.  Like,  610 
V.  Morgan,  5ri9 
V.  North,  571 
V.  Oakshot,  228 
V.  Parry,  420 
V.  Pearson,  960 
V.  Perrott.  386 
V.  Pocock,  612,  613 
V.  Williams,  1062 
Browne  v.  Cavendish,  302,  304,  305 
V.  Cross,  213 

V.  Groombridge,  750,  Ixxvii 
V.  Lee,  121 
Brownrigg  r.  Pike,  594,  996 
Brownson  r.  Lawrence,  764,  768,  770 
Bruce  v.  Bruce.  279 

V.  Garden,  125 
V.  Morice,  755,  758 
Bruen  v.  Bruen,  459 
Brummel  r.  Prothero,  744 
Bninskill  r.  Caird,  982,  983 
Bryan,  In  re,  531 
Bryant  v.  Bull,  584 
Brydges  r.  Phillips,  742.  744 

V.  Stevens,  867 
Buchanan  v.  Angus,  976 

r.  Harrison,  1042,  1046 
Buck  V.  Robson,  324 
Buckell  V.  Blenkhorn,  281,  288 
Buckland  r.  Pocknell,  381,  382 
Buckle  r.  Mitchell,  335 
Buckley's  Trust,  In  re,  95 
Buckley  r.  Howell,  282 
V.  Lanauze,  56 
Buckmaster  v.  Harrop,  886,  8S7,  893, 

899 
Bucknell  v.  Bucknell,  942 
Buckton  r.  Hav,  611 
Bulkley  r.  "Wilford.  268 
Bullock  V.  Menzies,  533 


xvm 


TABLE   OF   CASES. 


[The  paging  refers 
Bullpin  r.  Clark,  517,  584 
r.ulmer  r.  Hunter,  346 
Bulteel,  Lx  piiiic,  782 

r.  Plunmier,  464,  466,  469 
Bunker  v.  Coke,  418 
Bunn  V.  Bunn,  350 
v.  Guv,  942 

V.  Maikham,  1085,  1088 
Bunting  v.  Marriott,  745 
Burchett  v.  Durdant,  14 
Burden  r.  Blaster,  489,  490 

c.  Dean,  512,534 
Burges  v.  Lamb,  865,  998 
Burgess  v.  Wlieate,  367,  373.  392,  393, 
982 
•      V.  Moxon,  780,  788 
Burke,  In  re,  784,  797 

c.  Tuite,  573 
Burley  v.  Evelyn,  1042 
Burnabv  r.  Griffin,  23 
Burnell",  E.v  jmrte,  198 
Burney  v.  Macdouald,  904 
Burrell'scase,  334 
Burrell.  £.rj>rtWe,  800 

v.  Baskerfield,  994 
V.  Crutchley,  38,  272 
BniTowes  r.  Gore,  307 
Bursill  r.  Tanner,  588,  Ixxvi 
Burt  r.  Truetuan,  91 
Burting  v.  Stonard,  106. 
Burton  v.  Gray,  780 

V.  Hastings,  23 
V.  Hodsol,  984 
V.  Knowlton,  742 
r.  Newbery,  417 
r.  Vanheythuysen,  334 
V.  Wookey,  195 
Burton's  case,  629,  666 
Bushman  r.  Pell,  488 
Bustard  v.  Saunders,  35 
Butcher  v.  Butcher,  465,  616 
V.  Harrison,  349 
r.  Jackson,  460 
r.  Kemp,  422,  423 
Bute  (Marq.  ofj  v.  Cucynghame,  770 

V.  Eyder,  43 
Butler's  Will,  In  re,  1009 
Butler  V.  Butler,  756,  Ixxvi 

f.  Cumpstou,  578,  598,  599 
V.  Kvnnersley,  874 
V.  M'iller,  676 
Butricke  v.  Brodhurst,  429,  431 
Buttanshaw  ?;.  Martin,  615 
Butterfleld  v.  Heath,  338 

V.  Mott,  551,  557 
Butterworth,  lie  ;  Ex  parte  Russell,  345, 

352 
Button  r.  Downham,  629,  640,  657 
Buxton,  Exparte,  794 


to  the  [*1  pages.] 

Buxton  r.  Lister,  915,  917,  920,  933 

Byam  v.  Byam,  28,  46 

V.  Muuton,  1053 

V.  Sutton,  761 


Caddick  v.  Skidmore,  229 
Cadell  r.  Palmer,  40 
Cadman  r.  C'adnian,  1025 
Caerphilly  Colliery  Comp.,  In  re.  Par- 
son's case,  183 
Cahill  V.  Cahill,  895 
Calamy's  (Mrs. )  case,  699 
Caldwell  v.  Baylis,  861 
Calisher  r.  Forbes,  713,  715 
Callow  V.  Howie,  571 
Cambridge  v.  Rous,  1037,  1056 
Cameron,  In   re ;    Nixon  v.  Cameron, 

1045 
Campbell  r.Allgood,  866 

V.  Bainbridge,  616 
V.  French,  524,  526 
V.  Home,  447,  451 
V.  Ingilby,  416,  431,  433 
V.  Leach,  272,  277,  286 
V.  Walker,     176,    181,   209, 
211,213,214 
Campion  v.  Cotton,  346,  621 
Canadian  Oil  Works  Corporation,  In  re, 

Hay's  case,  182 
Candler  v.  Candler,  942 
Cane  v.  Allen  (Lord),  199,  201 
Cann  v.  Cann,  664 
Cannock  v.  Jauncey,  715 
Cannon  (Heir  of)  v.  Pack,  715 
Cant's  Estate,  Ee,  1003 
Cape  V.  Cape,  546 
Cape   Breton  Comp.,  In   re,  194,    195 

Ixxiv 
Capper  v.  Spottiswoode,  384 
Cappur  V.  Harris,  920 
Capron's  Trust,  In  re,  469 
Cardigan  (Lord)  v.  Montague,  205,  206 
Carey  v.  Carey,  177 
V.  Dovne,  789 
Carleton  v.  Dorset,  473,  476,  480 
Carlisle's  (Bishop  of)  case,  809 
Carlisle  Banking  Co.  v.  Thompson,  719, 

Ixxvii 
Carlon,  E.v  parte,  800 
Carlyon  r.  Truscott,  87,  91,  95 
Carr's  Trusts,  In  re,  515,  520 
Carr  v.  Eastabrook,  530 
V.  Ellison,  1004 
t-.  ErroU  (Lord),  38 
V.  Taylor,  492,  534 
Carriage  Co-operative  Supply  Ass.,  In 

re,  183 
Carson  v.  Sloane,  250 


TABLE  OF  CASES. 


XIX 


[The  pagiuf,'  refers 
Carter,  In  re,  801 

r.  Anderson,  579 
V.  BariKirdiston,  768 
V.  Bletsoe,  459 
V.  Carter,  27«,  702,  705 
V.  Green,  904 
V.  Haswell,  105G 
V.  Hind,  'SSS 
V.  Palmer,  203 
V.  Sunders,  105 
V.  Taggart,  521,  522 
v.  Wake,  802 
n  Williams,  951 
Cartwright  ;;.  Cartwriglit,  749 
Carver  v.  Bowles,  428 

V.  Richards,  280,  444,  453 
Casamajor  v.  Strode,  998 
Casberd  v.  Att.-Gen.,  780 

V.  Ward,  792 
Casborne  v.  Scaife,  722 
Castellan  v.  Hobson.  926 
Castle  V.  Dod,  245 
Castlemain   (Lord)   v.   Craven  (Lord), 

861 
Catling  V.  King,  906 
Caton  V.  Caton.  894,  895 

V.  Hideout,  579,  580,  581.  582 
Cator  r.  Pembroke  (Earl  of),  387 
Caulfield  v.  Maguire,  123 
Cavan  (Lady)  v.  Pulteney,  406,  408 
Cave  V.  Mackenzie,  249 
Cecil  V.  Juxon,  598 
Chadwick,  Ex  parte,  198 
V.  Doleman,  73 
r.  Maden,  249 
Chalk  V.  Danvers,  248. 
Challis  V.  Casborn,  721 
Chalmer    v.    Bradley,  212,   214,    972, 

1006 
Chalmers  v.  Storil,  423,  424,  429 
Chaloner  v.  Butcher,  1009 
Chamberlaine  v.  Chamberlaine,  903 
Chamberlyne  v.  Dummer,  864,  868 
Chambers  v.  Chambers,  24 
V.  Crabbe,  482 
V.  Howell,  197 
V.  Waters,  1-^0,  206 
Champion  v.  Rigby,  199,  211 
Chandler  v.  Pocoek,  977 
Chandos  (Duke  of)  r.  Talbot,  459 
Chaplin  v.  Horner,  978,  981 

V.  Young,  202 
Chapman  v.  Biggs,  587 
V.  Call'is,  930 
V.  Chapman.  780,  781 
V.  Emerv,  3.30,  334 
V.  Gibsoii,  269,  270,  274,  275, 

276 
V.  Midland  Kail.  Co.,  864 


to  the  [•]  pages.  ] 

Chapman  r.  Tanner,  3.57,  358,  366,  375 

V.  Wood,  608 
Charlemont  (Earl  ofj  »;.  Si)encer,  562 
Charles  c.  Andrews,  376 
Charlewood  r.  Bedibrd  (Duke  of),  888 
Charlton  r.  Durham  (Earl  of),  94 
r.  Low,  718 
V.  Kendall.  37,  46 
Charter  r.  Trevelyan,  189 
Chase  v.  Westmore,  376 
Chassing  v.  Parsonage,  528 
Cha.steauneuf  f.  Capevron,  9.30 
Chattock  V.  Muller,  191,  249,  897 
Chave  v.  Chave,  411 
Chawner's  Will,  In  re.  108 
Cheale  v.  Kerwood,  326,  921 
Cheslyn  v.  Dal))y,  948 
Chester  v.  I'latt,  572 

V.  Powell,  769 
Chesterfield,  &c.,  Co.  v.  Black,  192 

&c.,  Colliery  v.  Hawkins, 

329 
%\  Janssen,  151,  163,  172, 
624,  675,  693 
Chetwynd  v.  Fleetwood,  416,  432 
Chichester  v.  Bickerstaflf,  979,  980 
Childers  v.  Childers,  263.  266 
Chinnock  v.  Saiusbury,  941,  954 
Chipchase  c.  Simpson,  550 
Chippendale.  Ex  parte,  783 
Chissum  v.  Dew^es,  786.  941 
Chitty  V.  Parker,  1046 
Choat  V.  Yeates,  75U 
Cholmely  v.  Cholmely,  622 

V.  Paxton,  282 
Cholmoudeley's  case,  829 
Christ's  Hospital  v.  Budgin,  255 
Christie  v.  Gosling,  26,  38,  41 

V.  Noble,  947 
Christmas  v.  Christmas,  579 
Christy  ;•.    Courtenay.   253,  255,   260, 

262,  263,  267,  343,  348 
Chubb  V.  Stretch,  589 
Chudleigh's  case,  827,  828 
Chui-chill  V.  Churchill,  429 
V.  Dibben,  564 
V.  Grove,  699,  711 
r.  Small,  621 
Churchman  v.  Hervey,  274 
V.  Ireland.  419 
Churton  v.  Douglas,  950 
Chute  V.  Lindesay,  197 
Citizens'    Bank   of  Louisiana  v.  First 
National  Bank  of  New  Orleans,  896 
City  of  Loudon  v.  Nash,  933,  953 
Clanricarde  (Marquis  of)  v.  Kenning, 

212,  213 
Clarges  v.  Albemarle,  622 
Clarendon  (Earl  of)  v.  Barham,  754,  759 


XX 


TABLE    OF   CASES. 


[The  paging  refers 
Claringbonld  r.  Cnrtis,  96-1,  966 
Clark  v.  Clark,  197,  768 
r.  Cook,  513 
r.  Girchvood,  50 
r.  Glasgow  Assur.  Co.,  935 
V.  Guise,  426 
T.  ISIalpas,  308 
V.  Smith,  285 
Clarke's  Trusts,  In  re,  606 
Clarke  c.  Batters,  932 

v.  Fraukliu,  984,  997,  999, 1047 
V.  Grant,  897 
V.  Palmer,  796 
V.  Panopticon,  108 
V.  Pistor,  610 
V.  Reilly,  889 
r.  Royle,  381,  382 
V.  Swaile,  157,  179 
V.  Willott,  336 
V.  Wright,  330,  335 
Clarkson  v.  Edge,  951 
Clavering  r.  Clavering,  856    ' 

r.  Yorke,  1083 
Chixton  r.  Claxtou,  820 
Clav  &  Tetlev.  In  re,  104 
Claydon  v.  Finch,  607 
CI  ay  pole,  Kector  of.  Ex  parte,  984 
Clayton's  case,  250,  641,  657,  666,  1161 
Clayton  v.  Illingworth,  940 

V.  Wilton  (Earl  of),  341 
Cleaton  v.  Gower,  953 
Ciegg  V.  CI  egg,  872 

v.  Edmondson,  64,  254 
r.  Fishwick,  59,  227 
Clement  ;;.  Cheeseman,  1083 
Clements  v.  Eccles,  343 

V.  Hall,  59,  60,  227 
V.  Welles,  951 
Clementson  v.  Gandy,  413 
Clerk  V.  Miller,  572 

V.  Nettleship,  338 
r.  Wright,  886 
Gierke  (Sir  P.  Jennings)  v.  Smith,  151 
Clifford  V.  Turrell,  886,  901,  919 
Clinan  v.  Cooke,  885,  886,  887,  892,  901 
Clint,  In  re,  346 
Clissold  V.  Cook,  1013 
V.  Cork,  1013 
Clive  V.  Carew,  576,  607 

V.  Clive,  47 
Clongh  V.  Lambert,  333.  338,  347 
Clouter,  Ex  parte,  799,  800 
Clowdsley  v.  IVlham,  73 
Clutterbuck  r.  Clutterbuck,  749 
Coape-t-.  Arnold,  21,  30,  33 
Coard  v.  Holderness,  748 
Coates  V.  Coatgs,  126 
V.  Kenna.  51 
V.  Stevens,  414 


to  the  [•]  pages.  ] 

Coates  V.  Williams,  348 

Cochran's  Estate,  Ee,  134 

Cochrane  v.  Willis,  912 

Cockcroft  V.  Sutcliffe,  450,  454 

Cockel  V.  Phips,  506,  516 

Cockerell  v.  Cholmelev,  214.  278,  282 

V.  Essex  (Earl  of),  38,  41 
Cockroft,  In  re ;  Broadljent  v.  Groves, 

376,  766,  886 
Cocks,  Ex  parte,  798 
Codrington  v.  Codrington,  409,  416 

V.  Lindsay,  407,    409,  416, 
429 
Coffin  V.  Coffin,  864,  865,  867,  868 

v.  Cooper,  462,  464 
Cogan  V.  Duffield,  24,  25,  36,  51 

r.  Stevens,  1047 
Cogent  r.  Gibson,  919 
Cole  V.  Gibbons,  634,  638,  655,  660,  664. 
672,  674,  676,  678,  693 
V.  Gibson,  152,  163,  695 
V.  Miles,  108 
r.  White,  886,  887 
Colebrook's  (SirG.)  case,  214 
Coleby  v.  Coleby.  762 
Colegrave  v.  ISIanby,  57 
Coleman  v.  Birmingham  (Overseers  of) 
577 
V.  Seymour,  465 
V.  Winch,  721,  722 
Coles  V.  Bristowe,  923,  928 

V.  Pilkiugton,  887,  888,  895 
V.  Trecothick,  157,  178,  208 
Colleton  V.  Garth,  425 
Collett  r.  Dickenson,  586 
Collingwood  r.  Eow,  1001,  1003 
Collins  V.  Burton,  335,  349 
V.  Collins,  379,  947 
V.  Lewis,  769 
V.  Prosser,  124 
V.  Stimson,  251 
V.  Stuteley,  954 
V.  Wakeman,  974.    1039,   1044, 
1053,  1054,   1055 
Collinson  v.  Collinson,  263 

V.  Patrick,  311 
Collis  V.  Robios,  740,  745,  1053 
Colman  v.  Sarrel,  296,  297,  301 
Colmer  v.  Colmer,  533 
Colt  V.  Nettervill,  963 
Columbine  v.  Chichester,  930 

V.  Penhall,  346 
Colville  r.  Middleton,  740,  749 
Colwell  r.  Shadwell,  1008 
Colyear  v.  IMulgrave,  326,  329 
Colyer  r.  Finch,  77,  91,  93,  102,  388 
Combe  v.  Hughes,  35 
Comer  v.  Walkley,  375 
Coming,  Ex  parte,  774,  782 


TABLE    OF    CASES. 


XXI 


[Tho  pnf,'ing  refers 
Compton  (Lord)  v.  Oxemien,  !)Hl 
Coniugham  v.  I'lunkett,  lilo,  327 
Coiiington  r.  Gilkit,  fiK! 
Conloii  r.  Moore,  o79,  oDO 
Conner  v.  Fitzgerald,  869 
CVmolau  v.  Leyhuid,  089 
C'onolly  V.  McDeriuott,  444 
Cood  V.  Cood,  !^88,  893 

V.  Pollard,  :;85 
Cook  V.  Collingridge,  197 
r.  Cook,  f),  9,  1] 
V.  Dawson,  108 
V.  Fearn,  52 
V.  Fountain,  252 
V.  Fowler,  790 
Cooke's  Trustees'  Estates,  Ee  890 

Contract,  Ee,  994 
Cooke,  Ex  parte,  249 

V. 124 

V.  Burtctliaell,  684 

V.  Chilcott,  936 

V.  Cooke,  944 

V.  Dealey,  1021,  1022,  1046 

V.  Fuller,  554 

V.  The    Stationers'    Company, 

1049,  1050,  1055,  1056 
V.  Tombs,  8s6 
r.  Whaley,  815,  867 
r.  Williams,  510 
r.  Wilton,  703,  719 
Cooksonr.  Cooks()n,230,  978, 1010,1012 

r.  Keay,  990,  1012 
Coombe,  Ex  parte,  781 

Ex  parte,  /i<' Beavan,  783 
Coombes  r.  Rlanstield,  930,  932 
Coope  I'.  Cres.swell,  105 

V.  Twynam,  122,  124 
Cooper,  Ex  parte,  2S8 

V.  Cooper,    407,  408,  409,  427, 

429,  433,  449,  455 
V.  Gostling,  1006 
V.  Jaekson,  679 
V.  Jarman,  986 
r.  Jenkins,  126 
V.  Laroche,  611 
V.  Macdonald,  549,  564,  565, 

597,  598,  605 
V.  Martin,  280 
V.  Phibbs,  58 
V.  Wormald,  894 
Cooper's  Trusts.  In  re,  999,  1050,  1051 
Coote  ('.  Coote,  742,  743,  749 
V.  Gordon,  415 
r.  Jecks,  778 
V.  Lowndes,  764 
Cooth  V.  Jackson,  248,  886,  899 
Cope  r.  Cope,  757 

V.  De  La  Warr  (Earn.  34 
Copis  V.  Middletou,  126,   130,  132,  133 


to  the  [*]  pnges.  ] 
Co])land  )•.  Davies,  793 
Coppertiiwaite  v.  Tuite,  585 
Coppin  (•.  Coppin,  362,  367,  386 

V,  Fernyhougli,  55,  62,  63 
Cop])lestone,  Ex  parte;  reiinaW,  136 
Corballis  r.  Grainger,  579,  580,  581 
Corbet  v.  Corbet,  750 
Corbridge,  Ex  parte,  551 
Cordwell  r.  Mackrill,  52 
Curdwell's  estate,  Er,  520,  534 
Corley  v.  Stallbrd  (Lord),  50 
Cornick  v.  Pearce,  994 
Cornish  c.  Clark.  34.3,  348 
Cornthwaite  v.  Frith,  305 
Cornwall  v.  Hawkins,  951 
Corser  v.  Cartwriglit,  91 ,  102 
Cory  V.  Eyre,  785 

V.  Thames   Ironworks  and    Ship 
Building  Company,  955,  959, 
967 
Cosby  t;.  Ashtown  (Lord),  405,  413 
Cosens'  case,  8,  11 

Cosens  v.  Bognor  Eailway  Co.,  376,  377 
Cosnahan  v.  Grice,  1087 
Cosser  v.  Eadford,  305 
Costake  r.  Till.  941 
Costello  V.  O'Korke,  992 
Coster  V.  Coster,  519,  522 
Cotteen  v.  Missing,  326 
Cotter  V.  Layer,  271 
Cotterell  v.  Hampson,  80 

V.  Homer,  340,  353 
V.  Purchase,  897 
Cotton  V.  King,  473 
Cotton's  Trustees  and  School  Board  for 

London,  In  re,  10  )4 
Cottrel  V.  Harrington,  629 
Court  V.  Buckland,  1045, 1053 
Cousins,  1)1  re,  Ixxix 
Cout.^  V.  Acworth,  410,  414,  427 
Coventry  v.  Coventry,  275,   277,  739, 

747,  750,  753 
Coverdale  r.  Eastwood,  895 
Coward  and  Adam's  purchase.  In  Ee, 

521 
Cowell,  Ex  parte,  785 

V.  Edwards,  121 
V.  Simpson,  384 
Cowley  V.  Hartstouge.  990,  992,  993 

(Earl)  f.  Wellesley,  855,  877, 
878 
Cowper  I'.  Cotton,  402 

V.  Scott  402,  459 
Cowper's  (Ladv)  case,  545 
Cowx  V.  Foster",  338,  347^ 
Cox,  Ex  parte,  720 
V.  Barnard,  334 
V.  Bishop.  798 
V.  Cox,  83,  95 


xxu 


TABLE    OF    CASES. 


Cox  V.  Lyne,  547 

c.  Parker,  1057 
Coxhead  i:  JMullis,  695 
Coysegame,  Ex  parte,  509 
Crabb  i:  Crabb,  259,  260,  263,  413 
Crabtree  v.   Bramble,    977,    981,     992, 

1010,  1012 
Crat'kiiall  r.  Jaiison,  335,  341 
Craddock's  Trusts,  Ee,  524 
Craddock  v.  Owen,  1045,  1057 
Cragrave  v.  Perrost,  465 
Cramer's  case,  1025 
Cramer  v.  Moore,  329 
Crampton  v.  Yarna  Railway  Co.,  891, 

929,  937 
Crane  v.  Drake,  73,  111 
Crawshay  c.  j\Iaule,  227,  940 
Craythorne  v.    Swinburne,    120,    121, 

122,  124. 
Credland  v.  Potter,  784,  797 
Creed  <;.  Henderson,  Ixxviii 
Cresswell,  In  re;  Parkin  v.  Cresswell, 
38 
V.  Dewell,  527 
Crisp  V.  Pratt,  237 
Croft  v.  Graham.  686,  691,  693 

t.  Slee,  1049 
Crofton,  In  re,  1003 
Croker  v.  Martin,  335 
Crook  V.  Seaford  (Corp.  of,)   887,  888, 

892,  900,  936 
Crop  V.  Norton,  244,  251 
Cro.sby  v.  Church,  563,  575 
Cross  V.  Addenbrooke,  977 
Crossley  v.  City  of  Glasgow  Life  Ass. 
Co.,  803,  804 
V.  Elworthy.  343 
Croughton's  Trustsj^  In  re,  606 
Crow  V.  Kogers,  329 
Crowe  V.  Ballard,  189,  214 
Croxton  v.  May,  521,  522 
Crozier  v.  Crozier,  32 
Cruikshank  r.  Duffin,  107 
Crump,  lie,  526,  581 
Cruse  V.  Barley  and  Banson,  970,  971, 
1037,  1045 
V.  Paine,  923,  929 
Cruttwell  V.  Lye,  941,  942,  950 
Cubitt  V.  Smith,  935 
Cud  r.  Rutter,  963 
Cuddec  r.  Kutter,  907,  963 
Cuir  V.  Hall,  991 
Cull  V.  Sliowell,  410 
Cnllin's  Estate,  Be,  340 
Culpepper's  cas^,  702 
Culpepper  t".*Aston.  73,  80,  90 
Camming,  In  re,  511 

V.  Forrester,  409 
Cunningham's  Settlement,  In  re,  611 


[The  paging  refers  to  the  [*]  pages.  ] 


Cunningham  v.  Moody,  974,  976,  977, 

1008 
Cunuinghame  v.  Anstruther,  449,  461 
Cunynghame  v.  Thurlow,  462 
Curling  v.  Lycester  (Lord),  803 
V.  May,  989 

V.  Townshend,  685,  693 
Currant  v.  Jago,  255 
Curre  v.  Bowyer,  986 

V.  Nind,  336,  337,  338 
Curteis's  Trusts,  In  re,  2.59 
Curteis  v.  Wormald,  1048 
Curtis,  In  re;  Hawes  v.  Curtis,  Ixxvi 

V.  Fulbrook^  97 
Curtius  V.  Caledonian  Fire  &  Life  Ins. 

Co.,  804 
Curwyn  v.  Milner,  630,  634,  646,  654, 

659,  672,  677,  694 
Cusack  V.  Cusack,  22 
Custance  v.  Bradshaw,  233,  234,  997 
Cutler,  In  re,  520,  523,  527 
Cutten  V.  Sanger,  451 
Cutts,  Ex  parte,  892,  893,  933 
V.  Salmon,  200,  213 


D'Abbadie  v.  Bizoin,  443,  461 
Dacre  v.  Patrickson,  747,  763 
Dady  v.  Hartridge,  768 
Daglish,  Ex  parte,  787 
Baking  v.  Whimper,  336,  337 
Dakins  r.  Beresford,  550 
Dale  &  Co.,  Ex  parte,  250 
Dale  V.  Hamilton,  219,  229 
Dally  V.  Wonham,  679 
Daly  V.  Beckett,  851 
Dane's  Estate,  Li  re,  64 
D'Angibau,  In  re,  329 
Daniel's  Settlement  Trusts,  In  re,  51 
Daniel  v.  Arkwright,  449 
V.  Skipworth,  801 
Daniell,  Ex  parte,  184 
Darbey  v.  Whitaker,  941 
Darby  v.  Darby,  229,  232,  234 
Darcy  v.  Croft,  550 
Darke  ?;. Williamson,  108,  802 
Darkin  v.  Darkin,  582 
Darley  v.  Darley,  546 
Darlington  (Lord)  v.  Pulteney.  296 
Darnley  (Lord)   v.    London,  Chat.  & 

Dov.  R.  Co.,  936 
Darrell  v.  Whichot,  60 
Dashwood  v.  Bithazey,  801 
V.  Jermyn,  895 
V.  Peyton,  406,  409.  410 
Daubeny  v.  Cockburn,  444,  452,  453, 

454 
Daun  V.  City  of  London  Brewery  Co., 

714 


TABLE   OF   CASES. 


XXIU 


[The  paging  refers 
Daunt  r.  Daunt,  71fi 
Duvull  ('.  New  River  Co.,  1057 
Davenport  v.  Bishop,  :j:il. 

f.  Colt  man,  104(5 
V.  Davenport,  47 
Davers  r.  Dewes,  lor)(> 
Davidson,    In  re,    1005,     1007,    1010, 
Ixxix 
V.  Foley,  1050 
V.  A\'ood,  577 
Davies  r.  Ashford,  744,  748,  1010. 
r.  liusli,  75'2 
,     I'.  Cooper,  670,  679,  686 
.V.  Davies,  22,  52 
V.  Games,  232 
V.  Good  hew,  993 
V.  Hodgson,  575,  619 
V.  Jluguenin,  459,  462 
V.  liumphreys,  123 
t'. 'Jenkins,  571,  584 
V.  Leo,  853 
V.  Otty,  266,  305 
V.  Thomas,  387 
V.  Topp,  768 
Davis's  Estate,  Jn  re,  982,  984 
Davis  v.  Bowsher,  791 
I'.  Davis,  762 
V.  Harford,  286 
V.  Haycock,  923,  925 
V.  Marlborough  (Duke  of),  647, 

678,  679 
V.  Page,  433 
V.  Symonds.  222 
r.  ITpliill,  455 
Daw  V.  Terrell,  782,  784 
Dawes  v.  Creyke,  Ixxv 
V.  Scott,  744,  745 
r.  Tredwell,  617,  Ixxvii 
Dawson,  Ex  parte,  J?e  Dawson,  352 
V.  Bourne,  548 
V.  Clarke,  1056 
V.  Kearton,  333 
V.  Massey,  206 
V.  Prince,  601 
Day  r.  Merry,  865 

Dayrell  v.  C'hampneys.  816,  832,  859 
Deacon  t'.  Cohiuhonu,  253 
Deakin  v.  Lakin,  Ixxv,  Ixxvi,  Ixxvii 
Dean  v.  McDowell,  196 
Deane  v.  Izard,  898 
Deare  r.  Soutten,  533 
Dearmer,    In  re,    James   r.    Dearmer, 

Ixxv 
De  Beauvoir  r.  De  Beauvoir.  990 
De  Biel  v.  Thompson,  895 
De  Busscho  c.  Alt,  177,  212 
De  Chatelain  r.  De  Pontigny,  289 
Deerlmrst  (Lord)  c.  St.  Albans  (Duke 
of),  18,  21,  38 


to  the  [•]  pages.  ] 
Deeth  r.  Hale,  972,  1006 
Dcg  r.  Dog,  426 
Degge's  case,  1015 
De  Haviland  t'.  De  Saumarez,  2f> 
De  Hoghton  v.  Money,  337,  3.53 
De  la  Garde  v.  Lempriere,  518,  529 
De  Lancey,  Jie,  982 
Delane  v.  Delane,  254 
De  la  Touche's  Settlement,  In  re,  52 
Delves  v.  Delves,  208 
De  Mandeville  v.  Crompton,  481 
De  Mattos  v.  Gibson.  966 
De  Montmorency  r.jDevereux,  214 
Dening  v.  Ware,  302,  326,  333 
Dennis  v.  Badd,  1019 
Deutou  V.  Davies,  251 
V.  Denton,  857 
V.  Donner,  179,  180,  200 
Derbishire  r.  Home,  619 
Dering  v.  Winchelsea  (Earl    of),    114, 

120,  122 
De  Rochefort  v.  Dawes,  770 
De  Kos's  Trust,  Ixxvii 
Derwentwater's  (Lord)  case.  845 
Desart  (Lord)  r.  Goddard,  889 
Devaynes  v.  Noble,  93 

V.  Kobinson,  94 
Devenish  v.  Baines,  903 
De  Visme,  lie,  256.  257 
Devitt  V.  Faussett,  585 
Devoy  v.  Devoy,  223,  256.  262,  264 
DeAvar  r.  Maitlaud,  419,  430,  431 
Dewdney,  Ex  parte,  799 
Dewhurst,  Ex  parte,  251 
De  Winton  d.  Brecon  (Mayor  of),  706 
Dews  r.  Brandt.  6Ho 
Diamond  Fuel  Cqpipany,  In  re  ;  Mit- 

calfe's  case,  183 
Dicconson  ?'.  Talbot,  205 
Dickin  v.  Edwards,  748 

V.  Hamer,  877 
Dickinson  v.  Burrell,  335 

V.  Dickinson,  82 
V.  Shaw,  237,  240,  241.  242, 
261 
Dickson  r.  Robinson,  424 
Digby,  Ex  parte,  754,  757 

V.  Legard,  967.  973,  1U29,  1030, 
1033,  1040,  1041 
Dike  V.  Ricks,  90 
Dilkes  V.  Broadmead,  105 
Dillon  t'.  Blake.  18,  25 

V.  Coppin,  297,  314,  328 

V.  Grace,  280 

V.  Parker,  406,  409,  429.    431, 
432 
Dillwyn  r.  Llewellyn,  328,  885 
Dilrow  V.  Bone,  302 
Dimes  v.  Grand  Junction  Canal,  204 


XXIV 


TABLE    OP    CASES. 


Dimsdale  r.  Robertson,  944 
Diiiliam  v.  Bradford,  948 
Dinn  v.  Grant,  394 
Dipple  c.  Corles,  310.  311 
Disher  v.  Disher,  978 
Disney,  in  n\  520 
Ditchara  c.  Worrall,  695 
Dixie  V.  Wright,  10-25 
Dixon  V.  Dawson,  1045,  1053 
V.  Dixon,  579,  580 
V.  Gavfere,  382,  1010 
r.  Muckleston,  780,  781,  796 
r.  Olmius,  547 
V.  Parker,  897 
V.  Sampson,  413 
Doble,  Ex  parte,  340 
Dobson  V.  Land,  188 
Dodson  V.  Hay,  32,  976 
Doe  V.  Ball,  349       * 

(1.  Bromley  v.  Bettison,  287 

V.  Chichester,  413 

V.  Claridge,  98 

d.  Garnons  v.  Knight,  326 

V.  Hicks,  31 

V.  Hogg,  798 

V.  James,  336,  337,  339 

d.  Jones  v.  Hughes,  97,  98,  99,  101 

V.  Laming,  798 

V.  Lewis,  334,  335,  341 

d.  Lewis  v.  Hopkins,  334 

d.  Newman  r.  Rusham,  335 

f.  Oliver.  288 

V.  Rae,  337 

d.  Richards  v.  Lewis,  484 

V.  Rolfe,  338,  341 

V.  Rowe,  335 

d.  Tunstill  v.  Bottriell,  334,  337 

V.  Webber.  337 ' 

r.  Weller,  272,  280,  285,  286 
D'Oechesner  v.  Scott,  607,  608 
Doherty  v.  Waterford    and    Limerick 

Railway  Company,  912 
Doloret  v.  Rothschild,  921 
Dolphin  V.  Aylward,  334,  335,  353,  754 
Dolton  r.  Hewin,  89 
Donaldson  v.  Donaldson,  310,  312,  323, 

982,  983 
Donctister  v.  Doncaster,  20,  26,  32,  38, 

1006 
Done  V.  Whally,  133 
Donnell  v.  Bennett,  916,  951 
Donohoe  v.  Conrahy,  302,  312 
Doolan  v.  Blake.  608 
Doran  v.  Wiltshire,  80,  82 
Dorchester  (Lord)  v.  Effingham  (Earl 

of),  420 
Doughty  V.  Bull,  991 
Douglas  V.  Congreve,  18,  017 

V.  Culverwell,  203,  208,  897 


[The  paging  refers  to  the  [*]  pages.] 


Douglas  V.  Douglas,  107,  429 

V.  Howland,  120 
Douglasse  v.  Waad,  334 
Dover  v.  Buck.  177,  213 
Dowbiggin  v.  Bourne,  131 
Dowell  V.  Dew,  272,  277,  280,  285,  286, 

287 
Dowling  V.  Betjemann,  964 
V.  Hudson,  83,  84 
t\  Maguire,  572 
Down  V.  Ellis,  263 

Downes  v.  Grazebrook,  178,  179,  187. 
211 
V.  Jennings,  482,  483,  484 
Downs  V.  Collins,  940 
Downshire    (Marquis    of)    v.    Sandys 

(Lady),  857,  805,  867,  868 
Dowson  V.  Bell,  420,  421,  424 
Drake,  Ex  parte,  798 

V.  Trefusis,  982,  983 
Drant  v.  Vause,  1003 
Drever  v.  Mawdesley,  307 
Drew  V.  Lockett,  128 

V.  Martin,  258,  267,  268,  348 
Driscoll,  Ee,  797,  804 
Driver  v.  Ferrand,  742 
Drohan  r.  Drohan,  111 
Druce  v.  Denison,  413 
Drummond  v.  Tracy,  90,  91 
Drury  v.  Drury,  485 
V.  Scott,  596 

V.  Smith,  1071,  1072,  1079 
Dryden  v.  Frost,  385 
Drysdale  v.  Piggott,  125 
Duckett  V.  Thompson,  36 
Dues  r.  Smith,  526 

Dul3Qeld    v.  Elwes,  1073,    1074,   1077, 
1078,  1084,  1087 
V.  Smith,  401 
Duffy's  Trust,  In  re,  514 
Dugdale  r.  Dugdale,  386,  769 
Duggan  ('.  Duggan,  445 
Du  Hourmelin  v.  Sheldon,  987 
Duke  V.  Sylvester,  466 
Dumbell,  'Ex  parte,  199 
Dummer's  Will.  In  re,  982 
Dummer  v.  Pitcher,  256,  261,  413 
Dumper  v.  Dumper,  263 
Dunbar  v.  Tredennick,  209,  211,  214 
Duncan  v.  Bluett,  31 

V.  Campbell,  534 
V.  Cashin,  603 
V.  Tindal,  930,  932 
Duncan  Fox  &  Co.  v.  North  and  South 

Wales  Bank,  131 
Dunch  V.  Kent.  80,  307 
Duncomb  v.  Duncomb,  829 
Duncombe  v.  Greenacre,  508,  510,  520 
V.  Mayer,  965 


TABLE    OF    CASES. 


XXV 


[The  pagiuf,'  refers 
Duncuft  V.  Albrecht,  921 
Duiidas  V.  lilake.  H'.i 

V.  Dutens,  :}42,  8i)4 
Dungannou  (Lord)  v.  Sinitli,  40 
Dunk  r.  Fcniicr,  741 
Dunklcy  v.  J)iu)kl('y,  519,  520 
Dunlop,  1)1  re;  Dunlop  v.  Buiilop,  771 
Dunii  V.  Kyan.  !S64 
Duuue  V.  Boyd,  1080,  1081,  1083 

V.  Dunne,  982,  983 

V.  Eno;li,sh,  190 
Dunnill's  Trusts,  In  re,  48 
Dmoll  r.  Piitchard,  954 
Durlianv  v.  Crackles,  511,  514,  515 
Durour  r.    Motteux,    970.    971,    1029, 
•      1031, 1033,  1035,  1030,  1037,  1054 
Durrant  v.  Eicketts,  583 
Du  Vigier  v.  Lee,  721,'  722 
Dyas  V.  Cruise,  286,  287 
Dye  V.  Dye,  545 
Dyer  v.  Dyer,  236,  243,  255,  257,  1020, 

1021 
Dvke  V.  Kendall,  382,  420 
Dyke's  Estate,  In  re,  271,   272,    277, 
"985 


Earl  v.  Ferris,  551 

&  Webster's  Contract,  In  re,  104 
Earlom  ?'.  Saunders,  978,  990 
Early  v.  Early,  770 
East  V.  Cook,  415 

V.  Twyford,  20,  32 
East  Greensted's  ease,  703 
East  India  Co.  v.  Donald,  900 

V.  Henchman,  191,  941 
r.  Nutliumbadoo  Veer- 
aswamy  INIoodelly, 
886 
Ebrand  v.  Dancer.  237,  244,  255,  259 
Ebrington  v.  Ebrington,  432 
Eecles  r.  Thawill,  721 
Eddels  r.  Johnson,  768 
Ede  V.  Knowles,  334,  780,  789,  792 
Eden  v.  Weardale  Iron  and  Coal  Co., 

Ixxiii 
Edge  V.  Worthington,  780,  782 
Edgeworth  v.  Edgeworth,  457 
Edmonds  v.  Denniugton,  473,  476 
Edmunds  v.  Povey,  699,  702 

V.  Townshend,  524 
Edwards  v.  Abrey,  577 

V.  Bingham,  52 

V.  Browne,  676,  679,  682,  684, 

685,  686 

V.  Burt,   677,   679,  684,   685, 

686,  693,  694 
V.  Clay,  965 


to  the  [*]  piifjOP.] 
Edwards  v.  Dewar,  Ixxvii 
V.  Fashion,  224 
V.  Fidel,  244 
V.  Freeman,  753 
V.  Jones.  314,  319,  547,  1078, 

1079 
V.  Lewis.  54,  61 
V.  Martyn,  5^9 
V.  Meyrick,  199,  201 
V.  Morgan,  431 
V.  Pike,  2  IS.  904,  905 
V.  Tuck,  990,  9!)3 
V.    Warwick     (The  Countess 
of),    977,  978,  981,  991, 
loos,  1009 
V.  AVest,  1000,  1001,  1002 
V.  Williams,  201 
Edye  v.  Addi-son,  531 
Ecdes  V.  Eedes,  508,  533 
Egerton  v.  Brownlow  (Earl  of),  20 
Eidsforth  v.  Armstead,  100 
Ekyn's  Trusts,  In  re,  256,  261 
Eland  v.  Baker,  463 

V.  Eland,  84.  85,  89,  91 
Elder,  Kc  parte,  560 
Elias  V.  Griffith,  850 

V.  Snowdon  Slate  Quarries  Co., 
856 
Elibank  (Lady)  v.  Montolieu,  486,  493, 

504.  508,  516,  517,  529 
Elliot  V.  Brown,  226 

V.  Eliott,  237,  239,  261,  204 
V.  IMerryman,  72,  77,  84 
Elliott,   Assignees  of.  In  re   estate  of, 
798 
Ann,  In  the  goods  of,  554 
V.  Cordell,  514,  515 
V.  Dearsley,  741.  766 
V.  Edwards,  362,  369,  387 
V.  Fisher,  984,  1006 
r.  Remington,  525 
Ellis's  Trust,  In  re.  605 
Ellis  V.  Baitrum,  1044 

V.  Emmanuel,  122,  137,  138,  139 
V.  Johnson,  Ixxvii 
V.  Lewis,  420,  424 
r.  Nimmo.  271,  297,  328 
Ellison  r.  Ellison,   275,   291,  300,  545, 

912,  1087 
Elsey  V.  Cox,  343 
Elton  V.  Elton,  45 
Elvy  V.  Norwood,  716,  721,  722 
Elwes  r.  Elwes,  50 
Elwin  r.  Elwin,  990 
Elworthy  r.  Bird,  943 

V.  Wickstead.  527 
Emanuel  v.  Parlitt,  Ixxv 
Eml)lyu  r.  Freeman,    971,   1030,  1033, 
1047 


XXVI 


TABLE    OF   CASES. 


Emma  Silver  Mining  Co.  r.  Grant,  186 
V.  Lewis,  186 
Emmerson's  case,  923 
Emmett  v.  Totteham,  678 
Empress  Engineering  Co..  lie,  330 
Emuss  c.  Smith,  386,  768,  769,  1003 
England  (Bank  of)  case,  227 
England  r.  Codrington,  897 

V.  Curling,  940 
England  r.  Downs,  480,  482,  484 
Englefield  Colliery  Co.,  In  re,  183 
Eno  V.  Tatham,  76.3,  764 
Erlanger  v.  New  Sombrero  Phosphate 

Co.,  185,  195 
Ernest  v.  Nicholls.  187 
Erriugtou  v.  Aynesley,  933 
Erskine's,  Trusts,  In  re,  530 
E.sdaile  v.  Oxenham,  376,  392 
Essex  V.  Atkins,  566,  581 

V.  Essex,  233 
Este  V.  Este,  289 

r.  Smythe,  550 
Estwick  r.  Caillaud,  308 
Etna  Insurance  Co.,  In  re  Owens,  182, 

193 
Eton  College  r.  Beauchamp,  846 
European  Bank,  lie;  Agra  Bank  claim, 

791 
Eustace  v.  Robinson,  36 
Evans,  Ex  parte,  712 

In  re,  578,  995 

V.  Bagwell,  303 

V.  Chesshire,  659,  678,  693 

V.  Chester,  589 

V.  Cockeram,  749,  750,  752 

V.  Davis,  950 

r.  Evans,  38,  563,  746,  748,  750 

V.  Jennings,  309 

V.  Jones,  347 

r.  Llewellin,  676 

V.  Morgan,  589 

V.  Poole,  392 

i:  Smithson,  759 

V.  Tweedy,  376 

I'.  Walshe,  70,  71 

V.  Wood,  928 

V.  Wyatt,  754,  770 
Evelin's  (Lady)  ca.se,  808,  816,  818,  841 
Evelyn  r.  Evelyn,  735,  754,  755 

V.  Templer,  328,  337 
Ewart  V.  Chul)b,  .526 
Ewer  V.  Corbet,  106,  111 
Ewing  V.  O.sbaldiston,  394 
Exel  V.  Wallace,  18 
Exmouth     (Vise),   In  re;    Vise.     Ex- 
mouth  V.  Praed,  40 
Exton  V.  Scott,  326 
p]yre's  case,  1008 
Eyre  v.  Dolphin,  56,  62,  63 


[The  paging  refers  to  the  [']  pages.  ] 


Eyre  v.  McDonnell,  177 

V.  Marsden,  1042.  1043 
V.  Popham    899 
V.  Sadlier,  385,  387 
V.  Shaftsbury  (Countess  of),  483, 
943 
Eyton  V.   Denbigh,   &.,    Eailwav  Co.; 
378 


Fagg's  (Sir  John)  case,  702 
Fairclough  v.  Johnstone,  416 

V.  Marshall,  951 
Falcke  v.  Gray,  917,  929,  964 
Falkner  v.  Grace,  741 
Farebrother  v.   Wodehouse,  127,   128, 

130 
Farhall  v.  Farhall,  109,  110 
Farley,  Ex  parte,  782,  785,  788 
Farmer?;.  Dean,  181 

V.  Martin,  444,  453 
Farquarson  v.  Cave,    1079,    1081,  1086 
Farral  v.  Davenport,  887,  890 
Farrant  v.  Lovell.  859,  860 
Farrar  v.  Winterton  (Earl  of),  984 
Farrington  v.  Parker,  301,  581 
Fauconberge  (Lord)  r.  Fitzgerald,  296 
Faulkener  v.  Hollingsworth^  990 
Fawcett  v.  Whitehouse,  59,  190 
Fawell  V.  Heelis,  359,    361,   367,  368, 

391 
Fearenside  v.  Derham,  786 
Fearnside  v.  Flint,  722 
Fearon  v.  Desbrisay,  460 
Featherstone  v.  Fen  wick,  774,  780 
Featherstonhaugh  v.  Fenwick,  59,  61, 

196 
Fechter  v.  Montgomery,  953 
Fell  V.  Chamberlain,  897 
Fellow  r.  Jermyn,  1023 
Fells  V.  Read,  964 
Fenner  v.  Taylor,  518 
Fenwick  v.  Potts,  782 
Fereday  v.  Wightwick,  230 
Fereges  v.  Robinson,  728,  729,  733 
Ferguson  v.  Gibson,  134,  135 
V.  Tadman,  959 
V.  Wilson,  954 
Fermor's  case,  849 
Ferraby  v.  Hobson,  208 
Ferrand  v.  Wilson,  877 
Ferrars  v.  Cherry,  703 
Ferrers  (Earl)  «;."^Stalibrd,  &c.  Rail.  Co., 

378 
Ferrier  r.  Ferrier,  112 
Ferris  r.  Mullins,  775,  782 
Fettiplace  v.  Gorges,  562,  598 
Field  V.  Brown,  877,  1021 


TABLE    OP   CASES. 


XXVU 


[The  paging  refers 

Field  V.  Cook,  HOT 

V.  Donoughniore    (Lord).     30G, 

307  ' 
V.  Evans,  608 
V.  Lonsdale,  24G,  305 
V.  Moore,  546,  754 
V.  Pickett,  1053 
V.  Sowle,  568,  571,  584,  586 
Fielden  v.  Slater,  951 
Fielding  v.  "Winwood,  276 
Finch,  Inj-e,  313 

V.  Finch,    255,    260,   261,    264, 
545 
Finch  V.  Shaw,  388 

I'.  Winchelsea  (Earl  of)  328 
Firmin  v.  I'ulham,  683 
Firth  I'.   Midland  Eailway  Co.,  913, 
948 
V.  Ridley,  934 
Fisher  v.  Dixon,  786 

V.  Fisher,  745.  747 
Fitch  V.  Weber,  10 12,  1044 
Fitzer  v.  Fitzer,  338 
Fitzgerald  r.  .Jcrvoise,  998 
Fitzgibbon  v.  Blake,  585 

V.  Pike,  546,  598,  599 
V.  Scanlan,  54 
Fitzroyu  Richmond  (Duke  of),  449 
F'itzsimons  v.  Fitzsimons,  411 
Flamank,  Ex  parte,  1025 
Flanagan  v.  Flanagan,   969,  970,  972, 
1021,  1022,  1029,  1038 
V.   Great   AVestern   Railway 
Co.,  181 
Flavell,  In  re;  Murray  v.  Flavell,  331 
Fleet  V.  Perrins,  507,  603 
Fleetwood,  In  re,  903 

r.  Charnock,  122 
Fleming  v.  Armstrong,  619 

V.  Buchanan,  273,  432 

V.  Carlisle  (Bishop  of),  809, 

841 
V.  Fleming,  809,  816 
Fletcher,  Ex  parte,  800,  805 

V.  Ashburner,  869,  968, 1030 
V.  Chapman.  1047,  1048 
V.  Fletcher,  326,  333,  334,942 
V.  Robinson,  977 
V.  Sedley,  343,  348 
Flight  V.  Bentley,  798 
Flint  V.  Brandon,  933 
V.  Warren,  1045 
Flory  V.  Denny,  301 
Flower  v.  Buller,  586 
Floyd  V.  Buckland,  887 
Floyer  i.  Bankes,  1020 

r.  Sherrard,154,  155,  157 
Foden  v.  Finnev,  .527 
Foley  V.  Burnell,  28,  38,  39 


to  the  [•]  i»nges.] 
Folingo  r.  Martin,  956 
Follett  r.  Tyler,  597,  977 
F^oone  c.  Blount,  976  # 

Foord  r.  Baker,  55 
Foot  V.  Jones,  6.57 
Forbes  v.  Adams,  1005 
V.  Forbes,  311 
V.  Jackson,  125,  128,  720 
V.  Limond,  307 
V.  Peacock,  85,  86.  90,  91,  94, 

95,  98,  99,  1092 
V.  Ross,  189 
V.  Stevens,  233,  997 
Ford,  Re,  .520,  532 
V.  Olden,  188 
V.  Peering,  965 
V.  Ryan,  83  • 

%:  Stuart,  336,  339,  341 
V.  Tynte,  868 
Fordyce  v.  Willis,  252 
Forrest,  In  re.  947 

V.  Forest,  255,  264 
V.  Prescott,  739,  746 
Forrester  v.  Cotton,  409,  410 

V.  Leigh  (Lord),  756 
Forse  v.  Forse,  245 
Forshaw  v.  Higginson,  108 
Forster  v.  Abrahani,  205 
r.  Hale,  890.  892 
Fortescue  v.  Barnett,  318,  319,  320 

V.  Gregor,  278 
Fosbrooke  v.  Balguy,  70 
Foss  V.  Foss,  580 
Foster  v.  Blackstone,  389 
V.  Cook,  420,  424 
V.  Foster,  1023 
V.  Hall,  309 

and  Lister,  In  re,  338 
V.  Parker,  802 
V.  Roberts,  678,  679,  685 
Fothergill,  In  re,  136 

V.  Fothergill.  272.  274,  277 
r.  Rowland,  915,  918 
Fountayne  v.  Grimes,  640 
Fourdrin  v.  Gowdey,  741,  987 
Fourth  City  ISIutual  Benefit  Building 

Soc.  V.  Williams,  718,  719 
Fowke  V.  Draycott,  Ixxv 
Fowkes  r.  Pascoe,  251,  252,  253,  254. 

256,  268 
Fowler's  Trust,  Be,  408,  411,  427,  428 
Fowler  v.  Fowler,  50,  621 
V.  Scott,  1023 
V.  Willoughby,  749 
Fox  V.  Charlton,  409 

V.  Fox,  259.  261,262 
V.  Hawks,  317 

V.  Mackreth,  141,   174,   175,    179, 
643,  074,  694 


XXVUl 


TABLE    OF    CASES. 


[The  Imaging  refers 
Fox  V.  Wright,  683,  693 
Foxcrot't.  i:  Lister,  881,  885 
Foxwell  i\  Lewis,  Lxxix 
"Frail  v.  Ellis,  382,  387 
Frame  v.  Dawsou,  886,  890 
Framptou  v.  Frampton,  310,  347 
France  v.  Clark,  776 
Francis  v.  Brooking,  520,  521 
V.   Clemow,  468 
r.  Wigzell,  541,  583,  584,  586 
Francklyn  r.  Fern,  897 
Frank  v.  Frank,  433,  1005 
Frank  v.  Standish,  405 
Franklin  v.  Franklin,  255 
Franldinski  v.  Ball,  954 
Franklyn  v.  Tuton,  935 
Franks,  Ex  parte,  579 

V.  Bollans,  179,  1005 
r.  Price,  32 
Fraser,  In  re,  the  goods  of,  594 

(1.  Thompson,  346 
Frayne  v.  Taylor,  986 
Fream  v.  Bowling,  749 
Frederick  v.  Aynscombe,  976 
Freeman  v.  Bishop,  677 
V.  Ellis,  768 
V.  Fairlie,  511,  965 
V.  Pope,  343,  344,  345,  349 
Freemoult  v.  Dedire,  73 
Freke  r.  Barrington,  408 
Freme  v.  Brade,  677 
French  v.  Chichester,  744 
V.  Davies,  420 

V.  French,  343,  348,  349,  352 
Frere  v.  Moore,  388 
Frewin  v.  Frewin,  1025 
Frith  V.  Cartland,  249 
Fritz  V.  Hobson,  959 
Fry  r.  .Capper,  611 
Fulham  v.  Jones,  976 
Fuller's  case,  629,  667 
Fullerton  v.  Martin,  20 
Fiirber,  Ex  parte,  790 
Fursaker  v.  Robinson,  275' 
Fyfe  V,  Arbuthnot,  50 
Fvtche  V.  Fytche,  415,  420,  431,  432, 
434 


Gabbett  v.  Lawder,  67 
Gadbury,  Re.  256,  267 
Gatley's  Settlement,  In  re,  614,  615 
Gainsborough  v.  Gainsborough,  740 
Gainsford  v.  Dunn,  468,  469 
Gale  V.  Gale,  330 

V.  Williamson,  336,  347 
Gall  V.  Fenwick,  762,  771 
Gallagher  v.  Nugent,  571 


to  the  [•]  pages.  ] 

Galton  V.  Hancock,  727,  729  753,  768 

Gannon  v.  White,  319 

Gardiner  v.  Fell,  418 

V.  Gardiner,  340 
Gardner's  Trusts,  1006 
Gardner  v.  Gardner,  545,  581,  583 
V.  Marshall,  520 
V.  McCutcheon,  196 
V.  Parker,  1079,  1083,  1088 
V.  Walker,  529 
Garforth  v.  Bradley,  529 
Garmston  (Eector  of),  In  re,  984 
Garnett  v.  Acton,  986 
Garrard  v.  Dinorben  (Lord),  333 

V.  Lauderdale  (Lord),  303,304, 
308 

Garrett  v.  Wilkinson,  268 
Garrick  v.  Taylor,  244,  253 
Garry  v.  Sharratt,  800 
Garth  v.  Cotton  (Sir  John  Hind),  33, 
806,  851,  852,  853,  859,  870, 
871,  1214,  1215 
V.  Townsend,  281,  282 
Gascoigne  v.  Thwing,  247,  248 
Gaskell's  Trusts,  618 
Gaskell  v.  Gaskell,  305 
Gaston  v.  Frankum,  571 
Gayuer  v.  Royner,  126 
Gedye  %\  Matison,  126 
Gee  V.  Gurney,  458 
V.  Liddell,  310 
V.  Pack,  136,  137,  139 
General  Exchange  Bank  v.  Horner,185 
General  Provident  Assur.  Co. ,  In  re,  776 
General  Provident  Assur.  Co.,  In  re  ;■ 
Ex  parte,  National  Bank,   721,  776, 
777,  778 
General  South  American  Co.,  In  re, 

111 
Genese,  In  re;  Ex  parte  District  Bank, 

Ixxvi 
Gent  V.  Harris,  520,  521 

V.  Harrison,  872,  877 
George's  case,  262 
George  v.  Howard,  252,  253 

V.  Millbanke,  336,  349 
Geraghty  v.  Malone,  803 
Gerrard  ii.  O'Reilly,  694 
Gervais  v.  Edwards,  934,  944 
Giacometti  v.  Prodgers,  530  ' 
Gibbiusi'.  Eyden,  768,  770 
Gibbous  V.  Baddall,  359,  362,  363,  367, 
379,  387 
V.  Eyden,  386 
V.  Kibbey,  524,  525 
Gibbs  V.  Daniel,  199,  201 
V.  Glamis,  304 
V.  Harding,  942,  943 
V.  Ramsey,  1053,  1054,  1055 


TABLE    OF    CASES. 


XXIX 


[The  paging  refers  to  the  ['i  pagfis.] 


Gibson  v.  Gilison,  420,  421,  421 
V.  Iriyo,  iJliO 
v.  Jeyes.  170,  178,  200 
?'.  Kiiiven,  405 
Giddings  r.  Giddings,  50,  02,  03 
Gilbert  v.  Lewis,  547.  54h.  550 

.    V.  Overton,  :502,  312,  325 
Gilbertson  ;;.  Gilbertsoii,  743.  750 
Gilbey,  Exjicirte;  Jn  re  lU'dell,  130 
Gilchrist  u.  CatoT,  514,  532,  533 

r. 'Herbert,  805 
Giles  r.  Perkins,  701 
Gillillan  v.  Henderson,  942 
Gillespie  r.  Croker,  1087 
Gillett  r.  I'eppereorne,  104 

V.  Thornton,  045,  !)46 
Gillies?;.  Longlands,  077,  1007,  1013 
Gillisr.'MeGhee,  041 
Ginesi  v.  Cooper,  &e. ,  Co. ,  050 
Girdwood,  In  re,  780 
Gist,  In  re,  1018 
Gittens  v.  Steele,  748 
Glaister  v.  HeAver,  255,  348,  535 
Glanvill,  In  rr,  Ixxvii 
Glassinifton  r.  Tliwaites,  190 
Gleaves'r.  Paine,  510,  523 
Glede  v.  Glede,  720 
Glegg  i\  Edmondson.  59 

V.  Kees,  :\m,  308 
Glenorchy  (Lord)  r.  Bosville,  1, 18,  10, 

20,  30,  32,  40,  ;;53 
Gloucester     Banking     Co.     (Lim.)    r. 

Phillips.  588 
Glover,  Be,  311 

r.  Hall,  540 
Glynn,  Ex  parte,  784 

V.  Locke.  83 
Godber  v.  Laurie,  524 
Goddard  v.  Snow,  481,  482 

V.  White.  120 
Godfrey's  Trusts.  In  re,  515,  527 
Godfrey  v.  Harbcn,  570 
I'.  Tucker,  713 
V.  Watson,  708 
Godsall  V.  Webb,  319 
Godwin  r.  Kilsha,  275 
Gold  r.  Kutland,  508,  1000 
Goldicutt  V.  Townseud,  805 
Goldsmith  v.  Kussell,  349 
Gooch's  case,  334,  345 
Goode  V.  Burton,  .370 
Goodfellow  r.  fioodfellow,  422,  424 
Goodright  v.  Moses,  334,  338 
Goodwin  v.  Gray.  137 
V.  Loe,  752 
r.  Waghorn,  778 
Goodwright  v.  Hodges,  245,  247,  252 
Goodwyn  r.  Goodwyn,  275,  432 
V.  Spray,  871 


Gordon,  In  re,  1010,  1012 
•)).  Atkinson,  11)44 
V.  hutr,  748 
V.  Graham,  714 
V.  Scott,  59 
r.  Woodford,  855 
Gore,  E.f  parte,  198 

and  I )n rant's  case,  383 
r.  Kiiiglil.  508 
Gorge's  case,  202 
Goring  r.  Nash,  275,  328 
Gosling  V.  Carter,  00,  90 

V.  Gosling,  20,  38,  41,  250,  239 
V.  Warburton,  420 
Gossett's  Settlement,  In  re,  449 
Gould  V.  Oakden,  078 

r.  Robertson,  307 
Gould  V.  Teague,  1003  , 

Goulder  r.  Camm,  540,  009 
Gover  r.  Davis,  984 
Gowan,   Li  re;  Gowan  v.  Gowan,  30, 

37,  521 
Gower  r.  Grosvenor,  38 
Gowland  v.  De  Faria,  213,  078,    079, 

080,  093,  094 
Grace,  Ex  parte,  58 

V.  Bavnton,  900 
Graham's  Trusts,  Re,  550 
Graham  v.  Fitch,  585 
V.  Furber,  344 
V.  Londonderry,  545,  021,  622, 

023 
V.  O'Keeffe,  343,  347 
V.  Oliver,  287 
V.  Stewart,  20,  34 
Grant,  In  re,  510 

V.  Grant,  313,  540,  551,  023 
r.  Mills,  379,  391 
Granvill   (Lady)   r.  Beaufort  (Duchess 

of),  740 
Gravener  v.  Hallam,  1049 
Graves  Minors,  Re,  1003 
V.  Forman,  400 
r.  Hicks,  34,  754 
Gray  r.  Grav,  310 

V.  Johnston,  100,  112 
V.  Minnethorpe.  742,  747 
V.  Seckham,  137.  130 
Grayson  v.  Deakin,  422 
Grazebrook  r.  Percival.  484 
Great  Berlin  Steamboat  Co.,  In  re,  254, 

351 
Great  Eastern  Kail  way  Co.  r.  Turner, 

240 
Great    Luxembourg     Railway    Co.   r. 

Magnay,   192 
Great    Southern   &  Western    Railway 
Co..  In  re;  Ex  parte  Duke  of  Leinster, 
1009 


XXX 


TABLE   OF   CASES. 


[The  paging  refers  to  the  [*]  pages.  ] 


Great ed  r.  Created,  764,  771 

Greatley  v.  Noble,  572 

Greaves  v.  Powell,  748 

Greaves's  Settlement   Trusts,    In    re, 

978 
Greedy  v.  Lavender,  508,  530 
Green  i\  Bank  of  England,  254 
V.  Britten,  416,  417,  548 
r.  Carlill,  582 
V.  Ekins,  24,  42 
r.  Green,  409,  416,  600 
V.  Jackson,  1055 
V.  Lowes,  105 
V.  Marsden,  547 
V.  Otte,  519 
r.  Pulstord,  448 
*  V.  Stephens,  32,  977 

Greene  v.  Cole,  861 

r.  Greene,  742 
Greene  v.  West  Cheshire  Railway  Co., 

936 
Greenfield  v.  Bates,  201 
Greenhill  v.  Greenhill,  977 

V.  Isle  of   Wight    Railway 
Co.,  933 
Greenlaw  v.  King,  203,  204 
Greenway  v.  Greenway,  994 
Greenwood  v.  Greenwood,  682 

V.  Penny,  407,  419,  434 
Greerside  v.  Benson,  123 
Greetham  r.  Colton,  90,  101 
Gregory  v.  Gregory,  177,  211,  212 
V.  Lockyer,  594,  595 
V.  Mighell,  887,  901 
Gresham  Life  Ass.  Soc,  Ee,  927 
Gresley  r.  INIousley,  200,  212,  880 
Gretton  v.  Haward,  406,  432,  433 
Greville  v.  Browne,  468,  741 
Grey  v.  Cockerill,  965 

V.  Grey,  239,  255,   260,  261,  262, 
263 
Crier's  Estate,  In  re,  22,  23,  44 
Grier  v.  Grier,  22,  23.  44 
Grierson  v.  Cheshire  Lines  Committee, 
913,  914 
V.  Evre.  871 
Grieshach  v.  Freemantle,  1010,  1012 
Grievson  v.  Kirsopp,  993 
Griffin  v.  Griffin,  55,  61 
V.  Stanhope,  337 
Griffith  V.  Buckle,  22 

V.  Kicketts,  306,  984,  997,  1047 
V.  Rosea  wen  v.  Scott,  278,  410, 
416 
Griffiths  V.  Pruen,  1053 
Grigby  r.  Cox,  537,  540,  567,  581 
Griggs  V.  Gibson,  432 
V.  Staplee,  483 
Grirostone,  Ex  parte.  1015,  1016,  1019 


Grimwood  v.  Bartels,  1023 
Grissel,  In  re,  579 

V.  Bristowe,  923,  925 

V.  Swinhoe,  407,  408 
Groom  v.  Booth,  82,  95 
Grosvenor  v.  Durston,  411,  414 
V.  Lane,  505 
V.  Sherratt,  S06,  678 
Grove  n-  Grove,  699 
Grover  v.  Hugel,  180,  203,  204 
Groves's  Trust,  Ec,  519 
Groves  v.  Clarke,  517 

V.  Groves,  247,  252,  254 
V.  Perkins,  517 
Grute  V.  Locroft,  531 
Guardian  Life  Ass.  Co.  r.  Vise.  Avon- 
more,  336 
Guest  V.  Cowbridge  Rail.  Co.,  711 

V.  Smythe,  203,  208 
Guidot  V.  Guidot:  977 
Gullin  V.  Gullin,  528 
Gunn,  In  the  goods  of,  997 
Gunston  v.  Maynard,  588 
Giinter  I!.   Halsey,  899 
Gurly  V.  Gurly,  425 
Gurney  v.  Goggs,  549 

V.  Oranmore  (Lord),  306 
Guthrie  v.  AValrond,  417 
Guy  V.  Pearkes,  532 
G Wynne  v.  Heaton,   151,  676,  678,  693 
Gyett  V.  Williams,  468 
Gyun  V.  Gilbard,  528 


Hackney   (Borough    of)   Newspaper 

Co.,  In  re,  111 
Haddelsey  v.  Adams,  29,  32 
Haddon  v.  Fladgate,  551 
Hadley  v.  London  Bank  of  Scotland, 

803 
Haigh,  Ex  parte,  775,  780 

V.  Kaye,  267,  885 
Haines  v.  Burnet,  46 
Haldenby  r.  Spofforth,  93 
Hale  V.  Cox.  747 
V.  Hale,  960 
Hales  V.  Cox,  333 

V.  Risely,  828 

V.  Van  Berchem,  773 
Half  hide  v.  Penning,  944 
Halifax,  Ex  parte,  783 
Hall,  Ex  parte,  337 

V.  Andrews,  111 

V.  Franck,  224 

V.  Hallett,  176,  197,  209,  211 

V.  Hardy,  948 

V.  HilM21,  422,  423,  534 

I'.  Montague,  453 


TABLE    OF    CASES. 


XXXI 


[The  paging  refers 
Hall    V.  Noyes,  176 

V.  Palmer,  32(5,  333 
V.  Potter,  632 
V.  Kobinson,  125 
V.  Warren,  912 
1'.  Waterhouse,  564 
Hall-Dare  r.  Hall-Dare,  Ixxiii 
Hallett's  Estate,  In  re,  219,  250 
Halliwell  v.  Phillips,  868 
Hal>-ey  v.  Halsey,  528 
Hanihrooke  v.  Simmons,  1080 
Hamerton  v.  Rogers,  721 
Ilamil  V.  White,  50 
Hamilton,  lie,  784 

V.  Buckmaster,  101 
V.  Denney,  58 
V.  Foot,  i042,  1045,  1053 
V.  Kir  wan,  460 
V.  Molloy,  340 
V.  Worley,  755,  769 
V.  Wright.  176,  188,  209 
Hammersley  v.  De  Biel,  895 
Hampton  r.  Hodges,  855,  861 

V.  Holman,  44 
Hance  v.  Truwhitt,  419 
Hanchett  v.  Briscoe,  563,  575 
Hancocks  v.  Lablache,  604 
Hancox  v.  Abbey,  740,  747,  748,  749, 

752 
Hauley  v.  M'Dermott,  444 

V.  Pearson,  52 
Hannah  v.  Hodgson,  684 
Hanson,  Ex  parte,  391 

V.  Keating,  508,  512 
Harbert's  (Sir  William)  case,  117 
Harcourt  v.  Seymour,  1007,  1012 

V.  White,  880 
Hardey  v.  Green,  346 

V.  Hawkshaw,  984 
Harding  v.  Harding,  392,  765,  987,  995 
r.  Metropolitan  Kail.  Co.,  912, 

913,  985 
V.  Nott,  40 
V.  Trotter,  990 
Hardman  v.  Johnson,  68,  69,  1102 
Hardwicke  v.  Mynd,  83 

V.  W^ilmott,  Ixxvii 
(Lord)  r.  Vernon,  176,  209 
Hardy,  Ex  jjnrte,  lOiYS 
Harewood  v.  Child,  744 
Harford  v.  Carpenter,  774,  788 

V.  Lloyd,  249 
Harland  v.  Binks,  305,  348 
Harley  v.  Harley,  515 
Harman  v.  Fishar,  308,  352 

V.  Richards,  336,  338,  339 
Harmood  v.  Oglander,  297 
Harnett  v.  Maitland,  861 

V.  Macdougall,  609 


to  the  [*]  pages.  ] 

Harnett  r.  Yielding.  286,  287,  914 
Harper  r.  Miiiiday,  768 
Harpham  r.  Shacklock,  705,  706 
Harrington  (Couiit(-ssof )  v.  Harrington 
(Earl  of),  38,  39,  41 
V.  Price,  775 
Harris's  Settled  Estates,  In  re,  557 
Harris  v.  Evans,  878 

V.  Fergusson,  222,  223 

v.  Harwell,  903 

V.  Lee,  533 

V.  Mott,  564,  597 

V.  North   Devon   Railway   Co., 

929 
V.  Pepperell,  50 
i\  Trueman,  250 
Harrison,  Ex  parte,  199 

Exj)arte;  Tie  Jordan,  799, 
800 
In  re,  873 
V.  Asher,  259 
V.  Barton,  223 
r.  Gardner,  950 
Harrison  v.  Guest,  208 

V.  Harrison,  385,    419,    420, 

421,  854.  873 
V.  Nay  lor.  29,  ,32,  33 
V.  Randall,  453 
V.  Southcote,  302,  367,    394, 
965 
Harrop's  Estate,  In  re,  932,  1025 
Harrop  v.  Howard,  609 
Hart,  In  re;  Ex  parte  Fletcher,  800,  805 
V.  Hart,  255 
V.  Herwig,  932 
r.  Middlehurst,  23,  340 
Hartford  v.  Power,  547,  573 
Hartley  v.  Hurle,  550,  742 
Hartley  v.  O' Flaherty,  120,  124 
Hartopp  V.  Hartopp,  683 
Harvey's  Estate,  In  re,  273,  570,  620 
Harvey  v.  Harvej',  40 

V.  Metrooolitan  Railway   Co., 
913* 
Harwood  and  Cliild's  Case,  401 

?•.  Tooke,  685 
Haslewood  v.  Pope,  744 
Hastie  v.  Hastie,  611 
Hastings  v.  Douglass,  621 
Hatch  V.  Skelton,  752,  760 
Hatchell  r.  Eggleso,  513 
Hatfield  v.  Prime,  1045 
Hatton  V.  Haywood,  712 
Hawes  r.  Curtis.  Ixxvi 
Hawkes  v.  Hubback,  613 
Hawkins,  Ex  parte,  912,  985 
V.  Blcwitt,  1081 
V.  Holmes,  886.  887 
V.  Maltby,  900,  925,  926,  927 


xxxu 


TABLE    OF    CASES. 


[The  paging  refers 
Hawkins  v.  Taylor.  70:^,  717 
Hawksworth  i\  Erammall,  948,  949 
Ha-wtiy  V.  Butliu,  788 
Hay's  case.  190 

Hayes  v.  Alliance  Assurance  Co.,  317 
Haygarth  r.  Wearing,  67G 
Hayues  v.  Forshaw,  107,  110 

V.  Haynes,  912,  984.  985 
Hayter  v.  Rod.  981 
Hayward  r.  Pile,  65 
Hazlefoot's  Estate,  In  re,  721 
Head  v.  Head,  533 

V.  Eandall,  30 
Headen  r.  Kosher,  686 
Heal  i:  Knight,  995 
Healey,  In  re,  528 
Heames  r.  Bance,  721.  722 
Heap  V.  Touge,  339,  340 
Heard  v.  Pilley,  247,  249 
Hearle  v.  Botelers,  362,  366,  379,  387 
Hearle  v.  Greenbauk,  418,  495,  505,  597 
Hearne  r.  Hearne,  402 
Heartley  r.  Nicholson,  317 
Heath  v.  Crealock,  7U6 
r.  Lewis,  518 
V.  Wickham,  618 
Heathcote,  Ex  parte,  782,  784,  799 

V.  North  Staffordshire  Rail- 
way Co.,  916,  918,  951 
Heatley  v.  Thomas,  331,  568,  569,  570, 

586 
Heazle  r.  Fitzmaurice,  406 
Hedges  v.  Clarke,  527 

V.  Hedges,  755,  756, 1072, 1078 
V.  Metropolitan   Railway  Co., 
985 
Hedworth  v.  Primate,  699 
Heir  of  Cannon  r.  Pack,  715 
Helsham  r.  Barnett,  682,  691 
Hemming  v.  Griffith,  460 
Henchman    v.  Attorney-General,  982, 

1044,  1050,  1051,  1057 
Hender  r.  Rose.  429 
Henderson  r.  Eason,  872 

Henley  v.  ,  5207 

V.  Webb,  1005 
Henriques  v.  Bensusan,  304 
Henrv  v.  Ucnr\,  409,  411,  412.  740 
Ifensinan  r.  Fryer,  386,  769,  770 
Hentv  V.  Shroder,  956 

r.  Wrev.  457,  458,  459 
Heptinstall  r.'Gott,  1050 
Hepworth  v.  Hepworth,  259,  261 
V.  Heslop,  333 
V.  Hill,  762 
Herbert  »;.  Blnnden,  20. 
V.  Webster,  611 
Hercy  v.  Birch.  940 

V.  Din  woody,  212 


to  the  [»]  pages.  ] 

Hereford  v.  Ravenhill,  990,  1048 

Heritage  v.  Paine,  924 

Herman  v.  Hodges,  929 

Hernando,  In  re,  Hernando  t-.  Sawtell,. 

562 
Heron  v.  Heron,  247,  682^ 
Hervey  v.  Audland,  334 

V.  Hervey,  269,  274,  279 
Hesse  v.  Briant,  201 
Heveningham  v.  Heveningham,  770 
Hewett,  Ex  parte,  211 
V.  Kaye,  1082 
V.  Loosemore,  388,  794 
V.  Wright,  1007 
Hewison  ik  Negus,  338 
Hewitt  V.  Snare,  750 

T.  W^right,  1047 
Heyman  v.  Dubois,  128 
Hibbert  v.  Hibbert,  940 
Hichens  v.  Congreve,  190,  192 
Hickes  v.  Cooke,  188 
Hickley  v.  Hickley,  179 
Hickling  v.  Bo3'er,  754,  760 
Hickman  v.  Cox,  347,  348 
Hiern  v.  Mill,  781,  794,  796 
Higginbotham  v.  Hawkins,  851,  879 
Higgins  V.  Shaw,  105 
Higginsou  v.  Barueby,  44,  47 

V.  Clowes,  897 
Higgon  V.  Sydall,  699,  702,  709 
Highway  v.  Banner,  24,  409 
Higinbotham  v.  Holme,  346 
Hiles  V.  Moore,  713 
Hill  V.  Chapman,  1083 

V.  Cock,  1043 

V.  Cureton,  342 

V.  Edmonds,  513 

V.  Exeter  (Bishop  of),  334 

V.  Gomme,  329,  330 

V.  Hill,  44,  45,  58,  223 

V.  London  (Bishop  of),  769 

V.  Mill,  56,  64 

V.  Simpson,  109,  110,  112 

V.  Wilson,  301 
Hillman,  Ex  parte;  In  rePomtrey,  340, 

352 
Hills  V.  Croll,  934 

V.  Downton,  276 
V.  Hills,  1080 
Hilman  v.  Maj^hew,  958 
Hilton  (\  Tipper,  954 
Hinchiubroke  v.  Seymour,    456,    457, 

459,  1147 
Hinksman  v.  Smith,  686 
Hipgrave  v.  Case,  Ixxviii 
Hippesley  \\  Spencer,  860 
Hirst,  Ex  parte,  799,  805 

V.  Beach,  1083 
Hitchcock  V.  Cleudinen,  526 


TABLE    OF    CASES. 


XXXIU 


[The  paging  refers 
Kitchens  v.  Conp;reve,  1!)0,  102 
H  itch  man  r.  Htewart,  121,  123 
Hoare's  Trust,  In  rr,  'y.l 
Hoare  v.  Dresser,  1)18 
Hobbs  r.  Hull,  :WH,  !)43 
Hobby  V.  Collins,  lOOG 
Hobday  r.  I'cters,  202,  208,  569 
Hobson,  In  re,  Ixxv 

V.  Bass,  1:55,  \n,  139 
V.  Neale,  995 
V.  Thelluson,  305 
V.  Trevor,  647,  654 
Hockly  V.  Bantock,  782 
Hoddel  t'.  Pugh,  984 
Hodgcns  V.  Hodgens,  517,  528,  576 
Hodges  V.  Hodges,  570,  620 
Hodgkinson  v.  Cooper,  63 
V.  Crowe,  47 
V.  Kelly,  927,  928 
V.  National  Livestock  In- 
surance Co.,  181 
V.  Wyatt,  789,  804 
Hodgson  V.  Bective,  1043 
x\  Bower,  960 
V.  Hodgson,  562,  567 
V.  Shaw,  126,   130,   131,   132, 

133 
V.  "Williamson,  584 
Hodkinson  v.  Quinn,  101,  102 
Hogg  ('.  Jones,  38,  43 
Holden's  Estate,  Re,  1009 
Holden,  Be,  1009 

V.  Hearn,  781 
V.  Webber,  192 
V.  Weekes,  858 
Holderness  r.  Lamport,  246,  932 
Holdich  V.  Holdich,  420,  422 
Hole  V.  Harrison,  121 

V.  Thomas,  871,  872 
Holes  V.  Cox,  334 
Holford  V.  Holford,  334 

r.  Wood,  750 
Holland,  Ex  p'lrte;  In  re  Heneage,  579 
Holliday  v.  Bowman,  726,  729,  745 
Hollier  v.  Burne,  67 
Hollis  V.  Edwards,  887,  898 

V.  Whiteing,  898 
Holloway  v.  Headington,  320,  327,  328 
V.  Radclift.  1007 
V.  Webber,  41 
V.  York,  959 
Hoi  man  v.  Loynes,  200 
Holmes,  Ex  parte,  135,  139 
V.  Coghill,  273 
V.  Mathews,  897 
V.  Penney,  343,  345,  347 
Holmesdale    (Viscount)    v.    Sackville 

West,  21,  34,   15 
Holroyd  r.  Marshall,  918,  964 
3   WHITE  ON   EQUITY. 


to  the  [*]  pages.] 
Holt  V.  Holt.  54,  62 

t'.  Mill,  700 
Holthausen,  Ex  parte,  778 
Hdlynian,  Kx  parte,  198 
Home  )'.  Patrick,  585 
Honor  /•.  Honor,  24.  51 
Honywood  v.  Forster.  414 

V.  Honywood,  854,  855,873, 
875.  877 
Hood  r.  Hood,  392,  7(  2 

r.   North  Eastern   Pailway  Co., 
9:56,  952 
Hook  V.  Kinnear,  330 
Hooper,  Ex  parte,  712,  775,  782 

r.  Strutton,  101 
Hooper's  Trusts,  Uc,  520 
Hope,  Ex  parte,  136,  137 

V.  Cloncurry  (Lord),  893 
r.  Hope,  526,  942,  943 
r.  Liddell,  105,  213 
Hopkins  v.  Mvall,  280 
Hopkin.son  r.  Ellis,  1042,  1044 

V.  Rolt,  127,  714,  715,  720 
Hopper  V.  Conyers,  249 
Horn  r.  Horn,  80,  88 
Home  V.  Barton,  23,  32,  44,  45 

V.    London   &   North    Western 
Railway  Co.,  941 
Horner's  Estate,  In  re,  1024 
Horner  r.  Swan,  462 
Hornsby  v.  Lee,  507,  529 
Hotham's  Trusts,  Re,  982,  983 
Houghton,  Ex  parte,  244,  245 
V.  Houghton,  230 
Estate,  //)  re,  Ixxili 
Houston,  Ex  parte;  Re  Boyd,  139 
Hovey  v.  Blakeman,  610 
How  V.  Weldon,  643 
Howard  v.  Bank  of  England,  555,  556 
V.  Chaffer,  91 
V.  Digby,  580.  620,  621 
V.  Dryland,  742 
r.  Ducane,  204 
r.  Hooker   473,  475,  480 
Howe  r.  Hall,  889,  890 

V.  Howe,  237,  244,  245 
r.  Hunt.  9.54 
Howell  V.  Howell.  24 

V.  Palmer,  960 
Howells  r.  Jcnkin.s,'407,  408,  411 
Howkins  r.  Jackson,  50 
Howlcy  V.  Cook,  682,  691,  693 
How.sou's  Policy  Trusts,  In  re,  Ixxv 
Hoyes  v.  Kindersle3%  267 
Hudson,  In   re;   Creed   r.    Henderson, 
Ixxviii 
r.  Cook,  392,  986 
Hue  r.  French,  349 
Hughes,  Ex  parte,  177,  198,  209, 211, 214 


XXXIV 


TABLK    OF    CASES'. 


[The  paging  refers 
Hughes'  Trusts,  In  re,  Ixxv 
Hughes  v.  Howard,  61 

V.  Kearney,  357,  363,  370,  379, 

385,  387 
r.  Morris,  887,  930 
r.  Statham,  740 
V.  Stubbs,  305 

r.  Wells,    249,   275,  569,  579, 
582 
Hugnenin  v.  Baseley,  683 
Huisli's  Charity,  In  re,  443,  450 
Hulme  V.  Tenant,  213,  273,  485,  523, 

536,  543,  546,  570,  583 
Humberston  v..  Humberston,  43 
Humble  r.  Bill,  73,  106,  107 
Hume  r.  Rundell,  275,  277 
Humphrey  v.  Humphrey,  549 
V.  Olver,  448 
V.  Richards,  562 
Humphreys  v.  Harrison,  855,  680 

V.  Moses,  338 
Hungerford  r\  Earle,  344 
Hunt,  Ex  parte,  784 

V.  Matthews,  482 
Hunt  )'.  Wimbledon  Local  Board,  885, 

892 
Hunter  r.  Nockolds,  716,  722 

V.  Walters,  795 
Huntingdon  v.  Greenville,  702,  703,  708 
Huntington  r.  Huntington,  755 
Hurst  rT  Hurst,  462,  706 
Husband  v.  Davis,  224 
Huskisson  r.  Lefevre,  993 
Hussey  r.  Husse^',  869,  877 
Hutchin  v.  Mannington,  997 
Hutchins  v.  Hutchins,  448 

V.  Lee,  252 
Hutchinson  v.  Standley,  533 
Hutchison  v.   Hammond,    1046,    1054, 
1055 
V.  Skelton,  432 
Huxtable,    Ex  parte;  In  re   Conibeer, 

352 
Hyde  v.  White,  685 
Hvett  V.  Mekin,  990,  1023 
Hylton  V.  Hylton,  206 
Hynes  v.  Redington,  105 
Hythe  (Corp.  of)  v.  East,  956 

Ibbetson  v.  Ibbetson,  40,  757 
Ibbitson's  Estate,  In  re,  989,  993 
llchester  (Earl  of)  v.  Carnarvon   (Earl 

of ),  754,  755,  759,  760 
Imperial  Bank  r.  London  &  St.  Kath- 
arine Docks  Com]i.  130 
Imperial  Land  Co.  of  Marseilles,  In  re; 

In  re  National  Bank,  777 
Imperial  Land  Co.  of  Marseilles,  Inre; 
Ex  parte.  Larking,  181 


to  the  [*]  pages.] 

Imperial  Mercantile  Credit  A.ssociation 

r.  Coleman,  181,  190 
Inchiquin  (Lord)  v.  French,  727,  740 

V.  O'Brien,  727 
Incledon  v.  Northcote,  420 
Incorporated  Church  Building  Soc.  r. 

Coles,  988 
Inge  V.  Birmingham,  &c.  Rail.  Co.,  912 
Ingle  ■('.  Richards,  176,  187.  987 
Ingletield  v.  Coghlan,  548 
Ingram  v.  Ingram,  427 
Innes?;.  Sayer,  271,  273 
International  Contract  Co.,  In  re  Ind's 

case,  929 
International  Pulp  &Paper  Co., /a  re; 

Knowles'  Mortgage,  776,  777 
Inwood  V.  Twyne,  1010,  1018 
Ion  V.  Ashton,  748 
Irby  V.  Irby,  721 
Ireland  v.  Trinbaith,  524 
Irnham  v.  Child,  155 
Irons  V.  Smallpiece,  301 
Irvine  v.  Sullivan,  903 
Irwin  V.  Irwin,  449 
Isaac  In  re,  Ixxvi 

V.  Wall,  62,  69 
Isaacs  V.  Boulnois,  933 
Isald  r.  Fitzgerald,  64 
Ithell  r.  Beane.  80,  272,  330 
Iveus  p.  Butler,  589 

Jackson,  In  re,  983 

V.  Butler,  965 

V.  Cocker,  921,  922 

V.  Haworth,  585 

V.  Hobhouse,  576,  605,  608 

11.  Hurlock,  1050 

V.   Jackson,  223,    226,    228, 

272,  444,  948 
v.  Langford,  720,  721 
V.  Talbot,  983 
V.  Welsh.  58,  61,  64 
Jacob  r.  Isaac,  Ixxvi 
Jacobs  V.  Amyatt,  514,  519,  532,  550 

V.  Seward,  872 
Jakeman's  Trusts,  In  re,  598,  1006 
James,  Ex  parte,    176,    178,  179,    197. 
198,  201,  209,  210,  211 
V.  Barraud.  588 
V.  Bydder,  310 
V.  Couchman,  Ixxiv 
V.  Dean,  54,  56,  62 
V.  Dearmer,  Ixxv 
V.  Holmes,  244 
V.  James,  801 
V.  Morgan,  668,  676 
V.  Rice,  782,  789 
11.  Richardson,  14 
Jameson  v.  Stein,  895 


TABLE    OF   CASES. 


XXXV 


ITho  pjiginf,'  refers 
James  j>.  Whitbread,  'M7,  1518 
Jaqiu'S  V.  Millar,  ()',(;,  i){JO 
.Jeans  v.  Cooke,  244,  '2(J1,  2(;:3,  2G5 
J  ebb  V.  Abbott,  84 

V.  Jebb,  8(i5 
Jefitereys  v.  Small,  225.  22« 
Jctfervs  r.  Jellerys,  271,  297,  302,  326, 

328' 
Jenkins  v.  Kiles,  84,  89 
r.  Keniish,  340 
r.  Keyniise,  341 
V.  Parkinson,  953 
r.  Tucker,  595 
.lenkinson  r.  Ilarcourt,  754,  757 

r.  IVpys,  897 
Jenkyn  i:  Vaughan,  343,  344,  345 
Jenner  j;.  Jenner,  50,  683 

V.  Morris,  533 
■Tenney  r.  Andrews,  568 
Jennings  r.  Moore,  271,  272 
Jermy  v.  Preston,  1021,  1022 
Jernegan  /•.  Baxter,  524 
Jersey    (Earl    of)    v.     Briton     Ferry 

Floating  Dock  Co.,  378 
Jervis  r.  Berridge.  886,  898 
Jervoise  r.  Jervoise,  409,  413,  621,  622 
V.  Northumberland  (Duke  of), 
18,  19,  20,  28,  29,  32,  34 
Jessopr.  Watson,  1042,  1043,  1045 
Jesus  College  v.  Bloome,  811,  842,  871 
Jewson  V.  Moulson,  487,  490,  507,  512, 

519,  529,  534 
Job  V.  Potten,  871 
Jodrell  V.  Jodrcll,  339 
Johns  V.  James,  304,  306 
Johnes  i'.  Johnes,  865 

V.  Lockhart,  550 
Johnson's  Estate.  In  re,  39 

Trusts,  In  re,  26,  38 
Johnson,  Re  parte,  136 
In  re,  339 
V.  Arnold,  990 
V.  Ball,  313 
f.  Child,  769 
V.  Fesenmyer,  201 
V.  Gallagher,542,  569,573,574, 

585,  586,  594 
V.  Helleley.  950 
V.  Johnson,  516,  517,  1045 
r.  Kennett,    80,    84,   85,  86, 

87,-  89,  1092 
V.  Kershaw,  307 
V.  Lander,  521 
r.  Legard,  336,  340,  353 
V.  Shrewsbury  &  Birmingham 

Railway  Co.,  941 
t'.  Smith,  1086,  1087,  1088 
t).  Telford,  419 
V.  Webster,  1021 


to  the  [•]  pages.] 

Johnson  v.  Woods,  1044 

J()hnMt<m,   In  re;   Cockrell   v.  Earl  of 

EsHL'x,  38,  41 
Johnst^)n's  Estate,  lie,  109 
Johnstone  v.  Lumb,  596 
Joint  Stock  Discount  Co.  v.  Brown,  124 
JoUands  r.  Burdett,  607 
Jones,  Kc  parte,  695,  781,  800 

Kv parte;  In  re  Grissell,  579 

r.  Bad  ley,  902,  903,  904,  905 

r.  Bone.  951 

r.  Bruce.  743,  748 

V.  Collier,  420 

V.  Croucher,  342 

r.  Cuthbert.son,  603 

V.  Davids,  132 

V.  Davies,  999 

V.  Gooday,  939 

V.  Green,"^  1017 

V.  Harris,  574,  564 

V.  Jones,  63,  65,  302,  940,  947 

V.  Kearney,  61,  63 

V.  Laughton,  22 

r.  Lloyd,  434 

v.  Lock.  310.  311 

r.  Mitchell,  1042,  1054 

V.  Morgan,  19 

V.  Noyes,  88,  105 

V.  Peppercorne,  791,  792 

I'.  Powles,  702 

V.  Ricketts,  679,  685,  693 

V.  Salter,  612 

V.  Selby,  1060,  1072,  1074,1079, 

1082,  1083,  1087,  1088 
V.  Smith,  721 
r.  Stowasser,  110 
V.  Wedgwood,  947 
r.  Williams.  783,  784,  794 
les.see  of  Mofiat  v.   Whitaker, 
335 
Jordan,  In  re,  799,  800,  Ixxvii 

In  the  goods  of,  989,  1105 
Jorden  r.  Money,  896 
Joy  V.  Kent,  651 
.Joyce  r.  Hutton.  328.  329 
Joynes  r.  Statham,  ^97,  898 
Judd  V.  Pratt, '409,  419 
Justice  V.  Wigmore,  323 


Kampf  v.  Jones,  428 
Kane  r.  Kane,  617 
Kay  V.  Cook,  895 

V.  .Johnston,  234,  933,  935 

r.  Smith.  678 
Kcane,  In  re,  607 

r.  Robarts,  106 
Keats  r.  Hewer,  255 
Keays  r.  Lane,  565 


XXXVl 


TABLE    OF    CASES. 


[The  paging  refers 
Kebell  r.  Philpot,  781 
Keech  v.  Saudford,  53,  54,  19G,  1101 
Keer  c.  Brown,  5G6 
Keily  v.  Keily,  457 
Keith  V.  Burrows,  246 
Kekewich  v.  Manning,  300,  320,  322, 
340,  1206 
r.  Marker,  862 
Kelland  v.  Fulford,  1024 
Kellett  V.  Kellett,  1053 
Kelly  V.  Kelly,  54 
Kelson  v.  Kelson,  336 
Kemp  V.  Kemp,  467 
Kempson  r.  Ashbee,  214,  694 
Kempton  r.  Packman,  62 
Kendall  v.  Beckett,  676,  694 

V.  Marsters,  54 
Kenge  v.  Delavall,  586 
Kennard  v.  Kennard,  277,  279,  281 
Kennell  v.  Abbot,  1055 
Kennerley  v.  Kennerley,  36 
Kenne}'  v.  Browne,  2U9 

V.  Wrexham,  919 
Kenrick  v.  Beauclerk  (Lordj  98 
Kenrick  i\  Wood,  607,  619 
Kensington,  Ex  pnrie,  775,   779,   780, 
781,  789,  790 
V.  Dolland,  549,  550 
Kent  V.  Eiley,  344 
Keogh  r.  Cathcart,  586 
Keon  i:  Magawley,  82 
Keppell  V.  Bailey,  951 
Ker  V.  Dungannon  (Lord),  40,  41 

V.  Wauchope,  406 
Kerr's  Policy,  In  re,  789 
Kerrison  v.  Dorrien,  334,  792 
Kettle  V.  Townsend,  269,  274 
Kettleby  r.  Atwood,  978,  979 " 
Kettlewell  r.  Watson,  388,  704 
Kevan  v.  Crawfl)nT,  604 
Keys  V.  Williams,  782 
Kibble,  Ex  parte;  Be  Onslow,  695 
Kiddell  v.  Famell,  309 
Kidney  v.  Coossmaker,  345,  426,  429, 

1053 
Kilbee  v.  Sneyd,  176,  197 
Kilford  V.  Blaney,  Ixxvii 
Killick,  Ex  parte,  547 

r.  Flexney,  54,  61.  176,  197 
Kimber  ?■.  Barber,  191,  194 
Kincaid's  Trusts,  In  re,  520,  527 
Kinderly  r.  Jervis,  105,  711 
Kine  v.  Balfe,  887 
King,  In  re,  319 

V.  Anderson,  191 

V.  Benson,  782 

V.  Cotton,  341,  476,  482 

V.  Hamlet,  680,  1094 

i;.  King,  428,  451,  754 


to  the  [•]  pages.] 

King  V.  King-Harmon,  50 

V.  Leach,  KOI 

V.  Lucas,  562,  586 

v.  Melling,   4,  8,   9,    11,    13,  15, 
16,  17 

V.  Picard,  Ixxvii 

V.  Roney,  272,  277,  286 

V.  Saverv,  200,  676,  679,  680,  682. 
684,  694 

V.  Smith,  860,  861 
Kingdom  v.  Bridges,  237,  242,  255, 261 
Kingsley's  Trusts,  Be,  554 
Kingsman  v.  Kingsman,  483,  903 
Kingsmill  v.  Millard,  58 
Kinloch  v.  Sec.  oJ'  State  for  India,  305 
Kirk  V.  Biomley  Union,  891,  937 

V.  Clark,  335,  336 

V.  Webb,  247 
Kirke  r.  Kirke,  748 
Kirkham  v.  Smith,  405 
Kirkmau  v.  Miles,  981,  1010 
Kirkwood  v.  Thomp.son,  188 
Kirkwood's  Estate,  In  re,  127,  720 
Kirwan's  Trusts,  In  re,  279,  445 
Kirwan,  In  re.  580 
Kirwan  v.  Daniel,  303,  305 
Knapp  r.  Knapp,  460 
Knight  V.  Bowyer,  201 
V.  Davis,  753 
V.  Knight,  515,  615 
V.  Majoribanks,   180,  188,  212 
V.  Mosely,  858 
Knights  V.  Atkins,  978 
Knott,  Ex  parte,  706,  710,  717,718.720 
Knowles'  Mortgage,  776,  777 
Knox  V.  Turner,  125 
Knowles  r.  Haughton,  940 
Knye  v.  Moore,  965 
Koeber  r.  Sturgis,  514,  520,  532 
Kronheim  v.  Johnson,  302,  311,  312 
Kynaston  v.  Kynaston,  726,  745 


Laeoucheee  v.  Dawson,  950 
Lacam  r.  Mertins,  755 
Lacev,  Ex  parte,  149,  152,  174,176,  178, 
197,  198,  199,  209,  211,  214 

V.  Hill,  425,  426 

V.  Ingle,  385,  710 
Lacou  V.  Allen,  775,  783 

t'.  Lifien,  775 

V.  Mertins,  392,  393,  886,  899 
Lacy  r.  Anderson,  420 
Laing  v.  Laing,  36 
Laird  v.  Birkenhead  Eailway  Co.,  892, 

901 
Lake  v.  Brutton.  125,  126 

r.  Craddock,  217,  225,  229,  245 


TAI5LE    OF    CASKS. 


XXXV 11 


[Tho  patting  refers 
Lake  r.  Gibson,  215,  217,  221,  222,  223, 

22:"),  226,  229,  245 
Lalor  r.  Uihn;  WM 
Lamb  v.  Lamb,  419,  4:W 
Lambe  c.  Urton,  312,  321  ^ 

Lambert's  Estate,  In  re,  797 
Lambert  v.  Overton,  315 

V.  Peyton,  22 
Lampliier  v.  Despard,  748 
Lamplughw.  Lamplugh,  237,  2G0,  262, 

205 
Lancaster  t'.  Evors,  128,  1(121 
Lancaster  and  Carlisle  Railway  (Jo.  r. 

North  Western  Railway  Co.,  951 
Lance  v.  Algionby,  743,  74.S 

V.  Norman,  473,  47(),  484 
Lancefield  r.  Iggulden,  7G9,  770 
Lancy  v.  Fairchild,  978 
Lane  v.  Dighton,  247,  248,  249,  25:5 
V.  Husband,  307 
V.  Newdigate,  936 
V.  Oakes,  555 

V.  Page,  441,  442,  443,  444,  452, 
453 
Langdale  (Lady)  v.  Briggs,  757 
Langford  v.  Pitt,  977,  986 
Laugley  v.  Baldwin,   5,  7,  8,  9,  11 
Langslow  c.  Langslow,  288,  411,  428 
Langstafl'  v.  Nicholson,  376 
Langston,  Ex  parte.  780,  789 
V.  Blackmore,  449 
Langton  v.  Horton,  897 
Lanliam  v.  Pirie,  302 
Lanoy  v.  Athol  (Duke  of).  753 
Lansdowne    (Marquis     of)     v.    Lans- 
downe    (Marchioness    Dowager  of), 
861 
Larios  v.  Bonany  y  Gurety,  929 
Larkin  v.  Marshall,  589 
I^assence  v.  Tierney,  894 
Latimer  v.  Aylesbury  and  Buckingham 

Railway  Co.,  377 
La  Touche  c.  La  Touche,  570 

V.  Lucan  (Earl  of),  306 
Laurie  i'.  Bankes,  454 
V.  Cluttou,  435 
Lavender  r.  Stanton,  82 
Lavie  v.  Phillips,  579 
Law,  Re,  283 

V.  Bagwell.  304 
V.  Garrett,  945,  946 
V.  Indisputable  Life   Policy  Co., 
342 
Lawes  v.    Bennett,   1000,   1001,    1002, 

1003 
Lawley  v.  Hooper,  630,  646   • 
Lawrence  v.  Beverley,  976 
V.  Campbell,  305 
V.  Lawrence,  420 


to  the  L'J  pages.] 
Lawrence  v.  Maggs,  62,  63 
La\rrensoii  x\  Butler,  287 
Lawrie  i'.  Bankes,  4(>0 
Lawson  v.  Hudson,  755 
V.  Laude,  897 
V.  Lawson,    755,    1060,    1064, 

1071,  107H,  1079.  1082 
V.  Wright,  123 
Layard  r.  Maud,  796 
Layton  r.  Lajt<jn,  520 
Lea  r.  Cliurch,  519 
V.  Grundy,  580 
V.  Hinton,  125 
Leach  i:  Dene,  337 
Leak  i'.  Morrice,  898 
Leake  v.  Morris,  898 
Leathes,  Ex  parte,  784 
Lechmere  v.  Brotheridge,  562,  564 

r.  Carlisle    (Earl    of).    976, 

977,  978,  979,  992 
V.  Charlton,  754 
V.  Lechmere,  399,  980,  981 
Lee  V.  Alston,  810,  871 
V.  Egremont,  409,  534 
V.  Fernie,  447,  453 
Lee  V.  Green,  347 
V.  Magrath,  324 
V.  Mathews,  340 
V.  Prieaux.  546 
V.  Rook,  754 
?'.  Vernon  (Lord),  70 
Leeds  (Duke  of)  v.  Amherst  (Earl  of), 
213,  863,  870,    871,  874,  879,  880.  885 
Leeds  fJanking  Co.,  In  re;  Mrs.   Mat- 

thewman's  case,  578 
Leeming,  Re,  1015 
Lees  V.  Fisher,  801 
V.  Lees,  20,  46 
V.  Nuttall,  191 
Leese  t?.  Martin,  792 
Legal  V.  Miller,  897 
Legatt  r.  Sewell,  3,  5,  10,  11,  17,  29 
Legg  r.  Goldwire,  17,  49,  51 
Leggott  c.  Barrett,  950 
Leicester  v.  Foxcroft,  881 
Leigh's  Estate,  In  re,  983 
Leigh  (;.  Burnett,  Ixxiii 
Leigh  V.  Dickeson,  117 

V.  Lloyd,  103,  794 
Leman  v.  Newnham,  755 

V.  Whitly,  376 
Lemon  r.  Lemon,  420 
Lench  v.  Lench,  247,  248,  249 
Le  Neve  r.  Le  Neve,  63,  388.  795 
Lenzberg's  Polic}',  In  re,  669 
Leominster  Canal  Co.  v.    Shrewsbury 

and  Hereford  Railway  Co.,  914 
Leonard  r.  Sussex  (Earl  of),  6,  11,  12, 
16,  29,  47 


XXXVUl 


TABLE    OF   CASES. 


[The  paging  refers 
Leonino  r.  Leoiiino,  767,  770 
Lesley's  case,  69,  70,  Ixxiii 
Leslie's  Settlement  Trusts,  In  re,  783 
Leslie  i:  Devonshire  (Duke  ofj,  1048 
Lester  r.  Foxcroft,  881,  887 

r.  Garland,  346 
Lett's  Trusts,  In  re,  52(j 
Lett  V.  Eandall,  424 
Lewers  r.  Sliaftsbury  (Earl  ot),  954 
Lewis,  In  re,  Ixxix 
Le win's  Trusts,  In  re,  530 
Lewis,  In  re,  Ixxix 

V.  Hillman,  52,  187,  189 
V.  Kinij;,  406 
V.  Lane,  244,762 
r.  Lewis,  987 
V.  Madocks,  251 
V.  Matthews,  547,  550 
V.  Nangle,  757 
r.  Rees,  335 
Lewthwaite  v.  Clarkson,  793 
laddard  v.  Liddard,  25 
Life  Association  of  Scotland  v.  Siddal, 

212,  213,511,  515,  520 
Like  r.  Beresford,  528 
Lilford  V.  Powis-Keck,  386 
Lillia  r.  Airey,  570 
Lilwall's  Settlement,  Ee,  619 
Limerick  and  Ennis  Railway  Co.,  In 

re,  1009 
Limondson  r.  Sweed,  899 
Lincoln  College  (case  of),  812 

(Countess    of)     v.   Newcastle 

(Dukeot),  18,  20 
V.  Wright,  888,  897 
Lind  r.  Isle  of  Wight  Ferry  Co.,  914 
Linden,  Ex  parte,  376 
Lindow  v.  Fleetwood,  44,  45 
Lindsay  r.  Linch,  892,  900,  901 

Petroleum  Co.   r.   Hurd,  185, 
213 
Lindsell  v.  Thacker,  547 
Lingen  v.  Simpson,  965 

V.  Sowray,  977,  1007,  1012 
Linwood,  Exparte,  199 
Jiinzee's  Settlement,  In  re,  608 
Lippard  v.  Ricketts,  790 
I..ipscomb  V.  Lipscomb,  770 
Lismore  (Lord),  In  re,  977 
Lister  v.  Foxcroft,  88l,  887 

V.  Hodson,  51,  311,  354 
V.  Lister,  211 
■I).  Turner,  334,  350,  792 
Little  Steeping   (Rector  of),  Exparte, 

57 
Liverpool    Borough   Bank  v.    Turner, 

930 
Llewellin  v.  Cobbold,  484 
Llewellyn  v.  Mackworth,  409,  416 


to  the  [*]  pages.  ] 

Lloyd  (Mary),  In  re,  the  goods  of,  996 
V.  Attwood,   214,  334,  341,  702, 

713,  782,  794 
r.  Baldwin,  80,  94 
V.  Chune,  310 
V.  Cocker,  50 
V.  Dimmack,  943,  944 
V.  Loaring,  964 
V.  London  Chatham  and  Dover 

Railway  Co.,  951 
V.  Mason,  517 
V.  Pughe,  256,  267 
V.  Read,  239 
V.  Spillet,  252 

V.  Williams,  497,  504,   506,  516, 
517 
Lloyd's  Banking  Co.  v.  Jones,  Ixxviii 
Loader  v.  Clarke,  484 
Loaring,  Ex  parte,  379 
Loch  c.  Bagley,  35 
Lock  V.  Lynman,  196,  197 
Locke  V.  Lomas,  83 

V.   Prescott,  791 
Lockliart  r.  Hardy,  752 
r.  Reilly,  134 
Locking  v.  Parker,  188 
Lockwood,  Ex  parte,  57 

V.  Salter,  589 
Loddington  v.  Kime,  7,  13 
Loffus  V.  Maw,  896 
Lomas  v.  Wright,  334 
Lomax  v.  Lomax,  768 

V.  Ripley,  904,  905 
Lombard  v.  Hickson,  61 
London  and  Birmingham  Railway  Co. 
V.  Winter,  900 
and  Brighton  Railway  Co.  r. 

Fairclough,  1088 
and  County    Banking  Co.  v. 

Lewis,  803 
and  County  Banking   Co.    v. 

Ratcliffe,  714 
Chartered  Bank  of  Australia 
V.  Lempriere,  272,  277,  280, 
550,  567,  569,  570,  573 
Chartered   Bank  of  Australia 

V.  White,  792 
and  Provincial  Bank  r.  Bogle, 

586,  590,  592,  604 
and  South   Western  Railway 

Co.  V.  Humphrey,  943 
and  South   Western  Railway 
Extension   Act,    In    re;  Ex 
parte  Stevens,  378 
(Bank  of.  r.  Tvrell,  192,  202 
(City  of)  V.  Nash.  9:;3,  953 
(Corp.   of)  V.  Southgate,  935, 
955 
Long  V,  Kent,  417 


TABLE    OF    CASES. 


XXXIX 


[The  pacing  refers 
Long  V.  Long,  4:^2,  467 

V.  Wharton,  GU),  051 
Longbottom  v.  Ik-ny,  78,"),  78(5,  787 

r.  Peaice,  oil 
Longmate  ?•.  Lodgi  r,  208,  G7(J 
Loosemorc  r.  Kiiai>nian,  754 
Lord  V.  Jen'kins,  (J^O,  G83,  694 
V.  Lord,  893 
V.  Wiglitwick,  993 
Lorinier  v.  Lorinicr,  256,  259 
Loutli  and  East  Coast  Jvaihvay  Co.,  In 

re,  984 
Lovat  (Lord)  v.  Leeds  (Duchess  of),  878 
Lovatt  V.  Knipe,  54 
Lovell  V.  Newton,  552,  G04 
Lovesy  v.  Smith,  50,  52,  Ixxiii 
Lovett  V.  Lovett,  518 
Low  V.  Carter,  256 
V.  Holmes,  207 
Lowe  V.  Fox,  L\xvi 
V.  Swift,  893 
Lowes?,'.  Lowes.  422 
Lowndes  v.  Eettle,  864 

r.  Norton,  851,  877,  878 
Lowry's  Will,  In  re,  985 
Lowry  v.  Dutferin  (Lord),  277,  278 

V.  Lowry,  29 
Lowther  v.  Carlton,  70:] 

V.  Lowther,  189,  190,  9G4 
Lowthian  ?;.  Hasel,  722  , 
Loxley  v.  Heath,  8'J5 
Loyd,  Ex  parte,  784,  786 

V.  Kead,  244,  2G1,  262 
Luard,  E.c  parte,  578 
Lucas  V.  Brandreth,  990,  993,  994 
V.  Comerford,  798,  933 
V,  Dorrein,  781 
V.  Jones,  988 
V.  Lncas,  313,  545,  622 
Lucena  v.  Lucena,  275,  277,  278 
Luckcraft  v.  Pridham,  741 
Luckin  v.  Rush  worth,  60,  62 
Ludlow,  Ex  parte,  1017 
Luff?;.  Lord,  179,  197 
Luker  v.  Dennis,  951 
Lulham,  In  re,  Brenton  f.  Lulham,  55, 

57 
Lumb  v.  Milnes,  514,  532,  550,  576 
Lumley  i'.  Wagner,  951 
Lunn  V.  Thornton,  1087 
Lush's  Trusts,  In  re,  530 
Lushington  v.  Boldero.  866,  874,  875 

V.  Sewell,  755,  75G 
Luther  v.  Bianconi,  565 
Lutkins  v.  Leigh,  769 
Luttrell's  case,  831 
Luttrell  V.  Olmius,  288 
Lycett  V.  Stafford,  &c.,  Railway  Co., 
377 


to  thf>  [*  1  pnptos.] 

Lyddal  r.  Clavering,  869 

Lyddon  v.  Kllison,  44 

V.  Moss,  214,  693 
Lynch,  E.r  jxirle,  G!J5 
r.  Lynch,  3:58 
Lynn  v.  Asliton,  581 
Lynn  v.  Charters,  966 
Lyohs  V.  Blenkin,  :V.)() 
Lysaght  r.  Koyse,  467 
Lyster  r.  Dolland,  227 

r.  Foxcrolt,  HK],  887 
Lytton's  Settled  Estates,  In  re,  982      . 
Lytton  r.  Creat  Northern  Railway  Co., 
930 


Mabkr  v.  Hobbs.  484 

M'Askie?\  Al'Cav,  894 

Macaulay  v.  Philips,  496,  498,  499,  500, 

502,  529,  534 
Macbryde  v.  Eykyn,  585 
M'Burnie.  Ex  parte,  :M0,  346 
M'Call  V.  M'Call,  419 
M'Calmot  v.  Rankin,  930,  932 
M'Carthy  v.  Goold,  G47 
M'Cleau  v.  Kenward,  225 
M'Cleland  v.  Shaw,  742,  747,  749 
Macclesfield  (Earl  of)  v.  Davis,  964 
MacCormack  r.  MacCormack,  51 
M'Cormick  v.  Garnett,  526,  534 
V.  Grogan,  903,  904 
McCracken  v.  McClelland,  55 
M'Culloch  V.  Bland,  301 
M'Donagh,  Minors,  In  re,  120,  122 
Macdonald  v.  Whitlield,  123 
M'Donnell  r.  Hesilrige,  :502,  353,  480 
M'Fadden  v.  Jenkyns,  309.  311 
M'Gonnell  v.  Murray,  1082,  10fe(),  1087 
M' Henry  c.  Davies,  571,  795 
Machorro  v.  Stonehouse,  538,  539 
M'Kay's  case,  182,  183,  190 
Mackay  v.  Douglas,  345 
McKay  v.  McNally,  798 
Mackechnie  i'.  Majoril)anks,  451 
Mackey  v.  Maturin,  580 
McKenna's  Estate,  Re,  179,  212 
M'Keogh  r.  M'Keogh,  485 
ISI'Kewan  ;•.  Sanderson,  069 
Mackie  v.  Herbertson,  330 
INIcKinney's  Estate,  In  re,  784 
M'Kinney  I'.  Spowle,  797 
Mackinnon  v.  Stewart,  306,  308 
Mackreth  r.  Svmmons,  355,  375,  381, 

387,  389,  39(),  703 
IMackwortli  v.   llinxman.  .38,  41 
M'Larty  t'.  -Middleton,  930 
M'Lean  r.  Longlands,  313 
M'Leod  V.  Drummoud,  77,   lOG,    109, 

111,  112 


xl 


TABLE    OF    CASES. 


[The  paging  refers 
Macleod  v.  Jones,  203 
M'Mahou  V.  Burchell.  534,  872 
M'Mulleii  V.  O'Reilly,  111 
Mni'uamara  v.  Joues,  405 
Macnee  v.  Gorst,  791 
McNeillie  v.  Actou,  93 
McPherson  i:  Watt,  189,  195 
iM'Qaeen   v.    Farqubar,  448,  450,  454, 

457,  703 
Maddever,  In  re;  Three  Towns  Bank- 
ing Co.  V.  Maddever,  350 
Maddison  v.  Alderson,  896 

V.  Andrew,  465,  467 
V.  Chapman,  394, 411,412,414 
Maddy  v.  Hale.  65,  67 
ISIagawley'.s  Tru.st,  In  re,  343 
Magrath  v.  Morehead,  21,  36 
Maguire  v.  Dodd.  310,  1086 

V.  Scully,  21,  23 
Mahon  v.  Hodgens,  289 

(Lord)    V.    Stanhope   (Lord), 
865,  866 
Mainwaring's  Settlement,  In    re,  616 
Mair  v.  Himalaya  Tea  Co.,  941 
Major  ('.  Lumley.  563 
Majoribauks  r.  Hovenden,  280 
Makeown  v.  Ardagh,  310 
Malet,  In  re,  52 
Mallabar  v.  Mallabar,  970,  1029,  1031, 

1033,  1053 
Mallin's  Settled  Estate,  In  re,  283 
Malmesbury  (Earl  of)   v.  Malmesbury, 

(Countess  of),  50,  52 
Malony  v.  Kernan,  191 

V.  L' Estrange,  214 
Maltou  case,  The,  900 
Manchester    and    Liverpool     District 
Railway  Co.,  Kv parte,  re  Littler,  805 
Manchester    and   Southport    Railway 

Co.,  In  re,  985 
Mander  v.  Harris,  531,  558 
Mangles  ii.  Dixon,  385 
Mann  v.  Copeland,  749 
Manners  (Lord)  v.  Johnson,  951 
Manning  v.  Gill.  267 
Manningford  v.  Toleman,  718,  785,  793 
Mansell  v.  Mansell,  807,  813,  814,  830, 

833,  834,  835 
Mant  V.  Leith,  575 
Mara  v.  Manning,  565,  575 
March,  In  re;   Mander  v.  Harris,  531, 
558 
V.  Fowke,  745 
V.  Head,  491 
V.  Wells,  861 
Mare  r.  Sandford,  669 
Margetts  ?;.  Barringer,  546 
Margrave  v.  I^e  Hooke,  721 
Marker  v.  Marker,  865,  868 


to  the  [*]  pages.] 
Markwell  v.  Markwell,  326 
Marlborough's  (Duke  ofj.  Estates,  57 
Marlborough  (Duke  ofj  ';.    St.   John, 

858 
Marlborough's  (Duke  of)  Settlement, 
In  re;  Marlborough  (Duke   of)  Ma- 
joiibanks,  Ixxiii 
Marier  r.  Tommas,  327 
INIarriot  v.  Marriot,  903 
Marryat  v.  Townly,  23,  34 
Marsack  v.  Lyster,  514 
Marsden's  Trusts,  In  re,  444,  446 
JNIarsh  &  Earl  Granville.  In  re,  340 
V.  Att.-Gen.,  988 
V.  Lee,  696,  699,  700,  796 
Marshal  v.  Crutwell,  267 
M.arshall,  Ex  parte,  135 

V.  Berridge,  556 
v.  Bousfield,  29 
V.  Fowler,  520 
V.  Gibbings,  534 
V.  Holloway,  10.50 
V.  Shrewsbury,  801 
Marson  ??.  Lond.    Chat.  &  Dov.   Rail. 

Co.,  913 
Marston  v.  Gowan,  275 
Martelli  v.  Holloway,  39,  41 
Martin,  Ex  parte,  788 

l7i   re ;  Butterfield    v.    Mott, 
551,  557 
V.    Mitchell,   280,  495,    497, 

501,  506 
V.  Nutkin,  950 
V.  Powning,  199 
V.  Seamore,  335 
ex  dem.  Tregonwell  v.  Stra- 

chan,  845 
V.  Trimmer,  1010 
Martinson  r.  Clowes,  188,  Ixxiv 
INIartvn  ;».  Knowllj's,  872 
Mason  v.  Abdy,  629,  650,  658,  661,  666 
V.  Day,  1020 
V.  Mason,  35,  1019 
V.  Mitchell,  553 
V.  Morley,  785 

V.  Stokes  Bay  Pier  &  Rail.  Co., 
912 
Massey  v.  Davies,  194 

V.  Parker,  550,  612 
Massy  v.  Haj'es,  547,  550 

V.  Rowen,  546,  547,  550 
V.  Travers,  340 
Master  r.  Fuller,  571,  572 
Mather  v.  Eraser,  786 
r.  Norton,  93 
Mathias  v.  Mathias,  394 
Matson  r.  Dennis,  224 

V.  Swift,  996 
Matthew  v.  Bowler,  376,  381 


TAI5LK    OF    CASES. 


xli 


[The  im^iufs  refers  to  tho  [*]  pages.] 


Matthewman's  case,  Mrs.,  oTo 
Matthews  r.  C'artwright,  712 
V.  Fuaver,  ;M2 
V.  Wallwyn,  79!J 
V.  Whittlf,  r,9-2 
Maugham  r.  Mason.  ]().")2 
MaundrcU  r.  Mauiulrell,  3(50,  380,  718, 

1U.")0 
Maunsell,  Kv  parte,  1009 
V.  O'Brien,  70 
V.   White,  89.'),  896 
Mawe  ?'.  Ilcaviside,  525 
Mawhood  v.  Mil))anke,  GOl 
Maxtield  r.  lUirton,  705,  70G 
Maxted  r.  Paine,  923,  925 
Maxwell's  case,  208 
Maxwell  i\  Ashe,  63 

V.  IIvslop.  428,  764 
V.  Maxwell,  419,  764 
r.  Montacute,  81)7 
V.  Port  Tenant,  &c..  Coal  Co., 
940 
May  v.  May,  266 

V.  Roper,  1005 
V.  Skey,  53:  > 
V.  Thompson,  942 
Mayd  r.  Field,  .568,  570,  595,  615 
IMayhew  v.  Crickett,  120,  122,  126 
Mavn  V.  Mayn,  25,  44 
Mavor,  Ex  parte,  346 
Mead,  In  re,  1082,  1083 
Mead  v.  Hide,  740,  752 

V.  Orrery,  106,  110,  111,  112 
Meajier  v.  Pellew,  Ixxvi 
Meal  is  v.  Meal  is,  488 
Medcalfe  v.  Medcalfe,  948 
Medley  v.  Horton,  609 
]\Iedlicott  V.  O'Donel,  694 
Medwin  v.  Sandham,  274,  286 
Meek  v.  Bay  lis,  781 

V.  DeVenish,    1006,    1007,    1010, 

1013 
V.  Kettle  well,  311,  320,  1206 
Meere's  (Sir  Thomas)  case,  632 
Meggison  v.  Foster,  .336,  792 
Melbourne  Banking  Corp.  r.  Brougham, 

892 
Meller  v.  Woods,  801 
Mellersh  v.  Bridger,  761 
Mellish  V.  Vallins,  763,  764 
Mellor's  Policy  Trusts,  In  re,  556 
Mellor  V.  Porter.  775,  802 
Menzies  v.  Lighttbot,  715 
Merchants'  Trading  Co.  r.  Banner,  953 
Meredith,    In  re;    Meredith  v.  Facey, 

Ixxiv 
Meredith  v.  A'ick.  1011 

r.  Watson.  1085 
Merrimau's  Trusts,  Be,  520 


Merlins  v.  Jollifie,  703 
Messenger  r.  Cb'rke,  590 
Mestaer  v.  Gillespie,  H!)7 
Metcalf  r.  Pulvertoft,  335 
Metropolitan    Kaihvay   Co.    v.   Wood- 
house,  V'^l 
Meure  c.  Meure,  29,  32 
Meux  V.  Bell,  321 
V.  Feme,  801 
V.  .Jacobs,  785,  786 
V.  Smith,  712 
Mews  r.  Mews,  545,  .599 
Mevnell  v.  Surtees,  887,  888 
Miali  V.  Brain,  422,  423 
Michaers  Trusts,  In  re,  611 
Michell  V.  Michell,  712 
Michclmore  v.  ISIudge,  788,  793 
Micklethwaite  r.  Micklethwaite,  866 
Middlebrook  r.  BnmiUy,  418 
Middlecombe  r.  Marlow,  535 
INIiddleton  r.  Greenwood,  9:>4 
V.  Magnav,  392,  394 
V.  Middleton.  288,  768 
V.  Poimck,  249,  310 
■  V.  Spicer,  988,  10.57 
V.  AVindro.ss,  410 
Midland  Banking  Co.  r.  Chambers,  136, 

i:'.7 
IMidland  Counties    Kaihvay  Company 

V.  Oswin,  984    1024,   1025 
Mign(m  v.  Pi>rrv,  51 
Mildmay  r.  Quicke,  1024 
Miles,  Kv  parte,  136 

V.  Durntbrd,  107 
V.  Harford,  20,  42,  44 
V.  Harrison,  746 
r.  Knight,  462 
V.  Williams,  589 
Mill  )•.  Hill.  56,  62.  64,  209 
Millard  r.  Harvev.  887 
Miller,  Rv  parte,^7S2 

V.  Campbell,  529 

V.  Cook,  676,  682,  687,  688,  693 

V.  Finlay,  887 

V.  Harrison,  310 

V.  Miller,  571.  993,  998,  1073, 

1078,  1079,  1082,  1083 
r.  Sawyer,  125 
?•.  Thurgood.  411 
Millet  r.  Eowse,  528 
Mills's  Estate,  He,  311 
Mills  r.  ISIills,  279 
i\  Spear,  448 
Milne  r.  Milne  and  Fowler,  577 
Milner  v.  Colmer,  489,  510 

r.  Wilmer,  5"i9 
Milnes  r.  Busk,  579 
r.  Gery,  947 
t'.  Slater,  747,  748,  752 


xlii 


TABLE    OF    CASES. 


[The  paging  refers 
Milroy  r.  Lord,  311,  316,  545 
Milward's  Estate,  In  re,  283 
Minchiu  r.  Minchin,  468 
Minet  r.  Hyde.  524 
Mitcalfe's  case,  183 
Mitlbrd  v.  INIitford,  391 
Mocatta  v.  Bell,  702 

V.  Lousada,  466,  467 
Moflfiitt  V.  'Coruelius,  947 
MoOett  V.  Bates,  417 
MoUineux  r.  Powell,  859 
Molony  V.  Kennedy,  596 

r.  Kernan,  191 
]M()lvneaux's   Estate,  In  re,  546,  608, 

615 
jMolyneanx  Minors,  In  re,  526 
Money's  Trusts,  In  re.  65 
Money  v.  Jorden,  896 
Monro  v.  Taylor,  901 
Montagu  v.  Inchiquin,  38 
Montague  v.  Flockton,  951 
MonteJiore  v.  Behrens,  509,  535 
r.  Browne,  306,  307 
^Montesquieu  v.  Sand5^s,   199,  200,  201 
Moodie  v.  Reid,  275 
Moody  r.  Matthews,  54,  63 
Moor  V.  Ryoault,  535 
Moore  v.  Butler,  409,  432 
V.  Choat,  798 
f.  Culverhouse,  784,  797 
V.  Darton,  310,  1079,  1085,  1088 
r.  Greg,  793 
V.  Moore,   317,    580,    609,    764, 

1079,  1082,   1083 
V.  Morris,  614 
V.  Mulligan,  588 
v.  Walter,  551 
V.  Webster.  597 
Moore   and    Robinson's   Banking  Co., 

E.r  parte,  786 
Mordaunt  v.  Benwell,  1024 
More  V.  Mayhow,  360 
Morse  v.  Huish,  567 
Morgan's  Settled  Estate,  In  re,  602 
Morgan.  Ex  parte,  799 
'  In  re,  54,  63 
V.  Elford.  190 
V.  Malleson,  315,  316 
V.  ISIilman,  271,  278,  287,  893 
V.  Morgan,  409,  430,  597 
V.  Surman,  465 
V.  Swansea    Urban     Sanitary 
Authority.  385 
Moriarty  v.  Martin,  428 
Morrison  v.  Tliompson,  192,  194 
Morley  v.  Bird,  223 
V.  W.jbb,  73 
Moronev  v.  O'Dea,  693 
Morphett  r.  Jones,  886,  887,  888,  900 


to  the  [*]  i)ages.] 
Morrell  r.  Cowan,  571 
Morres  v.  Hodges,  64.  66 
Morret  v.  Paske,  707,  708,  713,  721,  722 
Morris  v.  Barrett,  228 
V.  Freeman,  571 
^•.  Griffiths,  992 
V.  Kearsley,  230 
r.  Morris,  863,  866,  871,  880 
Morrow  r.  Bush,  739,  751 
Morse's  Settlements,  In  re,  50,  52 
Morse  r.  Martin,  275,  277,  279 
V.  Merest,  948 
V.  Palmer,  213 

V.  Royal,  157,  178,  179,  211,  213, 
214 
Mortimer  v.  Davies,  244 

V.  Orchard,  887,  901 
Mortlock  V.  Buller,  277,  286 
Morton's  case,  926 
Morton's  Estate,  Re,  527 
Morvah  Consols  Tin  Mining  Co.,  In  re, 

McKay's  case,  183,  190 
Moseley  v.  Virgin,  935 
Mosley'?;.  Ward,  409,  416 
Moss,  Ex  parte,  775 

V.  Bainbrigge,  329 
V.  Cooper,  904 
V.  Dunlop,  524 
Moth  V.  Atwood,  684 
Mountford,  Ex  parte,  775,  780 

V.  Scott,  788 
Mower  v.  Orr,  994 
Muckleston  v.  Brown,  904,  906 
Muggeridge  v.  Stanton,  302,  598 
Muir  V.  Jolly,  384 
Mules  V.  Jennings,  995 
Mulhallen  v.  Marum,  61,  206 
Mullineux  v.  Mullineux,  554 

V.  Powell,  859 
Mullins  V.  Guilfoyle,  336 
Mulvany  r.  Dillon,  55,  61,  62 
Mumford  v.  Stohwasser,  706 
Mumma  v.  Mumma.  237,  260,  262,  263 
ISIummery  r.  Paul,  942 
Munday  v.  Jolliffe,  889,  901 
Munns  v.  Isle  of  Wight  Railway  Com- 
pany, 377 
Munt  r.  Glynes,  36,  612 
Murless  r.  Franklin,  260,  261,  263,  260 
Murphy  v.  Abraham,  343 
'      V.  O'Shea,  189,  191 
r.  Taylor,  897 
Murray's  Executor's  Case,  187 
Murray  v.  Earlee.  543,  571,  572,  584 
V.  Elibank    (Lord),  493,    501, 

516,  517,  551 
V.  Flayell,  331 
V.  Palmer,  214,  093 
V.  Parker,  50 


TABLE    or    CASES. 


xliii 


[The  paging  refers 
Murray  v.  Scott.  778 
Murtagh  r.  Costello,  232 
Murton  v.  IMarkby,  994 
Musgrave  v.  Parry,  SOS,  832 
Musgrove  r.  Flood,  'y'M 
Musters  v.  Wright,  59(5 
Mutlowv.  Bigg,  lOOH,  1010,  1012 
Mutual  Aid  I'ernuuu'ut  lienetit  Build 

iug  Society,  In  re,   Ixxvii 
Myddleton  v.  Kenyou  (Lord),  338 
Mvles  V.  Burtou,  587,  Ixxvi 


Nab  v.  Nab,  903 

Nagle's  Trusts,  In  re,  284 

Nagle  v.  O'Donnell,  579 

Nail  V.  Punter,  570 

Nairn  v.   Prowse,  340,  357,  364,   368, 

369,  384,  391 
Nandike  v.  Wilkes,  23,  271 
Nant-y-Glo  and  Blaina  Ironworks  Co. 

V.  Grave.  182,  183 
Nantes  v.  Corrock,  584 
Napier  v.  Napier,  519,  520 
Nash  V.  Pease,  587 

V.  Worcester,   Impvt.   Commrs., 
376,  912,  985 
National  Bank  of  Australasia  r.  Cherry, 

775 
National  Provincial  Bank  of  England, 

Ex  parte,  136 
Native  Iron  Ore  Company,  In  re,  776 
Naylor  v.  Winch,  I'SO,  197 

V.  Wright,  50 
Neale  v.  Cripps,  864 

v.  Day,  343,  348 
V.  Neale,  888 
Neesom  v.  Clarkson,  393 
Nelley's  Trust,  In  re,  32 
Nelson  v.  Bealby,  225 
V.  Booth,  578 
V.  Bridges,  959 
r.  Page,  763.  766 
r.  Stocker,  483 
Nesbitt  V.  Kerridge,  679,  692 
V.  Meyer,  940 

V.  Tredennick,  54,  56,  60,  70 
Nether  Stower  Vicarage,  In  re,  983 
Nettleship,  Ex  parte.  In  re  Burkhill, 
781,  789 
V.  Nettle.ship,  578 
Neve  V.  Pennell,  784,  797 
Nevill  V.  Nevill,  34 

r.  Snelling,  690,  693 
Nevirbegin  v.  Bell,  743,  750 
Newberry's  Trusts,  In  re,  1051 
Newbery  r.  James,  940,  950 
Newbold  c.  Koadnight,  749 


to  the  [")  pages.] 

New  Brunswick  iS:    Canada    Railw.  & 
Land  Co.   (Limited)  c.  Muggergide, 
922,  940 
Newlniry  v.  Marten,  802 
Newcastle's  (Duke  of)  Estates,  In  re, 

284,  856 
Newcastle  (Duke  of )  v.  Lincoln  (Coun- 
tess of ),  26,  38 
r.  Vane,  810,  852 
Newcastle  (Duchess  of)  v.  Pelham,  965 
Newcomen  v.  Hassard,  564 
Newcnliam  v.  Pemberton,  508,  511 
Newhouse  ;;.  Smith,  752.  761 
Newlands  ?;.  Paynter,  545,  601.  616 
Newlands  Settled  Estates,  In  re,  982 
Newman  r.  Johnson,  73 

I'.  Newman.  410,  429 
v.  Wilson.  5-JO,  764 
Newmarch,  In  re,  766,  770 

r.  Storr,  766 
Newnham  r.  Graves,  930 
Newport's  case,  336 
Newry  Railway  Co.  r.  Moss,  798 
New  Soml)rero  Phosphate    Co.    r.    ¥.t- 

langer,  185 
Newstead  r.  Searles,  330.  341 
Newton  v.  Askew,  302.  326 

V.  Chorlton,  126,  128 
V.  Hunt,  684,  686 
.    V.  Preston,  247,  248 
V.  Reid,  612 
V.  Roe,  589 
r.  Taylor,  945 
New  Zealand  and  Australian  Land  Co. 

V.  Ruston,  250 
New  Zealand  and  Australian  Land  Co. 

V.  Watson,  250 
Nicholl  V.  Jones,  943 
Nicholson  v.  Mulligan,  249,  253,  254. 
258 
V.  Tutiu,  306 
Nickalls  v.  Merry,  924,  925 
Nickels  v.  Hancock,  948,  949,  950 
Nickissou  r.  Cockill,  994 
Nives  V.  Nives,  379.  917 
Nixon  r.  Cameron,  1045 
Noble  r.  Willock.  562 
Noel  c.  Henlev  (Lord).  747.  749,  752, 
75.5,^1049,  1054 
V.  Noel,  585,  757 
Norcott  V.  Gordon.  420 
Norcutt  V.  Dodd,  342 
Norfolk's  (Duke  of)  case,  3 
Normanby    (Marquess    of)     r.   Berklv 

(Lord),  910 
Norreys  v.  Frank.  1055 
Norris  v.  Chambers,  379 
V.  Fraser,  903 
V.  Harrison,  1026 


xliv 


TABLE    OF    CASES. 


[The  paging  refen 
Xorris  v.  Jackson,  887,  890,  934,  955 
V.  Le  Neve,  64.  69 
v.  Wilkinson,  782 
North  Brecon  Riiilway  Co.,  In  re,  378 
Nortlicote  t.  Doughty,  695 
Nortliern  Counties  of  England  Fire  In- 
surance Co.  V.  Whipp,  794 
Northej'  r.  Northey,  621 
Xortliumberland  (Earl  of)  v.  Aylesford 

(^Earl  of),  431 
Norton,  Ex  parte,  509 

r.  Mascall,  948 
V.  Turvill,  537,  539,  569,  570, 
584 
Norway  r.  Roe,  227 
Nott  V.  Hill,  630,  653,  677,  685 
Nottley  r.  Palmer,  420,  425 
Novs  V.  Mordaunt,  395,  401,  402,  404, 

405,  417 
Nugent  r.  Gifford,  73,  110,  111 
Nun  r.  Fabian,  888 
Nutbrown  r.  Thornton,  920,  964 


Oakes,  Ex  parte,  i?e  "Worters,  790 
O' Brian  (bankrupt),  Jn  re,  786,  791 
O'Brien  v.  Egan,  56,  62 
r.  O'Brien,  867 
V.  Shell,  259,  264 
Odessa  Tram  Co.  r.  Mendel,  921,  922. 

934 
O'Fav  V.  Burke,  278,  893 
O'Ferrall,  Ex  parte,  492,  534 
Ogden  V.  Lowry,  100 
Oglander  v.  Baston,  489 
Ogle  V.  Cooke,  974,   1030,  1039,   1040, 

1044 
O'Gorman  v.  Comyn,  340 
O'Halloran  r.  King,  606,  607.  620 
O'Hara  r.  Chaine,  422 
O'Herlihv  v.  Hedges,  886 
Oke  r.  Heath.  1056 
Oldam  V.  Lichford,  903 
Oldenshaw  v.  Holt,  939 
Oldham  v.  Hughes.  979,  1005 

V.  Stringer,  602 
Oldin  r.  Sambourn,  206 
Oliver  ;•.  Court,  1H9,  190,  209 

r.  Oliver,  :]6,  521 
Olliver  r.  King,  349 
O'Neal  V.  Mead,  769 
Onge  r.  Truelock,  123 
On.slow's  ca.se,  1008 
Oram  v.  Richardson,  91 
Ord  r.  Noel,  2«6 
O'Reilly  r.  Thompson,  886,  890 
Oriental  Inland  Steam  Co.  v.   Briggs, 

922 
Orme  r.  Wright,  187 


to  tho  [*]  pages.] 

Ormerod's  case,  183 

Ormond  (Lord)  v.  Anderson,  901 

(Marquess  of)  r.  Kynuerslev, 
874,  875,  876 
O'Rorke  r.  Bolinbroke,  082,  692 
Orrell  r.  Orrell,  419 
Orrett,  Ex  parte,  In  re  Pye.  783 
Ortigosa  v.  Brown,  706 
Osborn  v.  Bellman,  20 

V.  Morgan,  .508,  515,  527 
Osborne,  Ee,  604 

V.  Williams,  647 
Osgood  V.  Strode,  340,  341 
Osmond  v.  Fitzroy,  151 
Oswald  V.  Thompson,  344 
Oswell  r.  Probert,  534 
Otter  V.  Vaux  (Lord),  61 
Ottway  V.  Wing,  585 
Otway  V.  Hudson,  977 
Ouseley  v.  Anstruther,   259,  310,  740, 

745,  748 
Ousley  V.  Carroll,  1070 
Owen  V.  Body,  308,  348 

V.  Braddell,  354 

r.  Foulkes,  198,  199 

V.  Horaan,  570 

V.  Owen,  718 

V.    Williams,  55,  61,  G4 
Owens  V.  Dickenson,  ,572,  594.  595 
Ox  en  den  v.  Compton  (Lord),  981,  1014, 

1015,  1016,  1021,  1022 
Oxenden  v.  Oxenden,  531.  533 
Oxenham  r.  Esdaile,  :;92,  393 
Oxf(.rd  V.  Provand,  901,  935,  936 
Oxford's  (Earl  of)  case,  951 
Oxford  (Earl  of )  r.  Ro'dnaj^  (Lady),  757 


Pack  r.  Andrew,  263 
Packer  v.  Packer,  524 

V.  Wyndham,  491 
Packington's  case,  864 
Padburv  c.  Clark,  407,  409.  411,  430. 

1011  " 
Page  r.  Adam,  76.  84,  85,  89 

r.  Broom,  303 

r.  Home,  302,  353 

r.  Leaping  well,  1054 
Paget's  case,  838 
Paget  V.  Huish,  748,  749 
Pagett  V.  Hoskins,  73 
Paice  V.  Abp.  of  Canterbury,  988 
Pain  V.  Coombs,  887 

r.  Smith,  801 
Paine  v.  Hutchinson,  926 
Paley  r.  Field,  135,  136,  137,  139 
Palmer's  Will,  hire.  284 
Palmer  v.  Locke,  462.  464 
V.  Wheeler,  453 


TAULE    OF    CASES. 


xlv 


[Tho  paging  refers 
Palmer  v.  Younp,  r>S 
Panaimi  and  South  Pacific  Teleg.  Co. 
V.  ludia  Kubber,  Gulta  Percha,  &c., 
Co.,  PJIi 
Paunell,  Ex  parte;  In  re  England,  805 

V.  Hurley,  113 
Papillon  V.  Voice,  5,  12, 17,  18,30, 32,965 
Pares,  In  re,  1018 

V.  Pares,  448 
Parker  v.  Jiolton,  30,  31 

V.  iJrooke,  54,  63,  538,  545,  546, 

580 
V.  Carter,  335,  338 
V.  Clarke,  793 
•      V.  Downing,  420 
r.  Housetield,  801 
V.  Lechmere,  545 
V.  McKenna,  190,  211 
r.  Smith,  885,  890,  891 
r.  Sowerb}%  4-23 
Parkes,  Ex  parte,  384 
Parkes  v.  White,  180,  212,  567,    605, 

608.  610 
Parkin  c.  Cresswell,  38 
Parkinson  v.  Hanbury,  188,  394 
Parnell  v.  Kingston,  309,  319 
Parr  v.  Applebee,  932 

V.  Eliason,  3156 
Parrot  v.  Palmer,  871 
Parrott  v.  Sweetland,  382 
Parry  v.  Ashley,  1026 
Parson's  case,  183 
Parsons  t'.  Briddock.  131 

V.  Dunne,  433,  524 
V.  Freeman,  756 
Parteriche  r.  Pawlet,  861 
Partridge  v.  Pawlet,  813 
Passingham  r.  Sherljorn,  177 
Patch  V.  Shore,  333,  334 
I'atching  v.  Barnett,  748 
Patent   Bread   Machinery   Co..  In   re, 

Ex  parte,  Valpy  &  Chaplin,  776 
Patent  Carriage  Co.,  In  re,  383 
Patent  File  Co.,  In  re,  "ill,  778 
Patterson  i;.  Murphy.  305,  307,  310,  326 

V.  Scott,  743 
Patterson,  Be,  1085 
Paul  V.  Jones,  135 
V.  Paul,  331 
Pawlet  r.  Delaval,  489,  579 
Paxton  r.  Newton,  933 
Payne  v.  Little,  579.  580 

V.  Mortimer,  333,  336,  895 
Peachy's  (Sir  .John)  ca.se,  247 
Peacock's  Trusts,  In  re,  .")51 
Peacock  v.  Burt,  360,  703 
V.  Evans,  677,  693 
V.  Monk,   537,  539,  540,  562, 
564,  570,  585 


to  the  [•]  pages.  1 
Peake,  Expaifr,  379,  .391 
V.  I'enlington,  44 
Pearce  r.  Crutchlicld,  .528 

V.  Gardner,  991 
Peard  r.  Kekewich,  44 
Pearl  r.  Deacon,  126 
Pearmaiu  v.  Twiss,  768 
Pearne  v.  Lisle,  964 
Pear.se,  In  re  the  goods  of,  905 

&  I'rotheio,  Ex  parte,  782,  783 
r.  Baron,   45 
V.  Pearse,  551 
Pearson,  In  re;  Ex  parte  Stephens.  347 
r.  Amicable  Ass.  Oil.,  319 
V.  Benson,  108.  209 
V.  Lane,  994,  998,  1008 
r.  New.son,  200,  201 
V.  Pearson,  420 
Pease  r.  Jackson.  701,  71^.  719 
Peck  r.  Peck.  430,  432 
Peckham  r.  Taylor,  310,  315 
Pedder's  Settlement,  In  re,  981,    994, 

1007,1009,  1013 
Pedder  v.  Mosely,  305,  319 
Peele,  Ex  parte,  329 
Peillon  V.  Brooking,  607,  618 
Peirs  V.  Peirs,  754 
Pell  V.  De  Winton,  83 

V.  Northampton,  &c.,  Railw.  Co., 
377 
Pembert).  Mathers.  898.  943 
Pemberton  v.  McGill,  576,  607 
Pembroke  v.  Thorpe,  886,  936 
Pembrooke  v.  Friend,  762,  764 
Pendlebury  r.  Walker,  122 
Penfold  I'.  Bouch,  5(:8 

V.  Mould,  310,  525 
Penhall  r.  El  win,  343,  347 
Penn  r.  Baltimore  (Lord),  914 
Pennell  v.  Deflfell,  249,  250 

V.  Millar,  678 
Penny  v.  Allen,  245 
Pepper  r.  Dixon.  422 
Peppercorne  r.  Clench,  924 
Perens  v.  Johnson,  195,  196 
Perfect  v.  Lane,  C80,  684,  686 
Perks,  Ex  parte,  19S 

V.  Mylred,  588 
Perkyns  v.   Baynton,  755 
Perrot  v.  Perrot,  853 
Perry  Ex  parte;  In  re  Collins,  783 
Perry  v.  Barnett,  Ixxviii 
V.  Whitehead,  275 
Perry-Herrick  r.  Attwood,  341,  795 
Peter  v.  Nicolls,  336 

V.  Kich,  121 
Peters  r.  Grote,  532,  578 

V.    Lewes    &    East   Grimstead 
Railw.   Co.,  207,   564,  993 


xlvi 


TABLE  OF  CASES. 


[The  paging  refers  to  tlio  [']  page?.  ] 


Pethybridge  r.  Burrow.  310,  Ixxiv 
I'eto  J*.  Hammond,  385,  387 
I'etre  r.  Duncombe,  123 
V.  Espinasse,  353 
Pettiward  v.  Prescott,  419 
Petty  .!.  Styward,  223 
Phayer  i\  Peree,   394 
I'lu'lps  V.  Prothero,  953 
Philips  V.  Philips,  718 
Phillipps  V.  Smith,  855 
Phillips,  Ex  parte,  1015,  1018,  1019 

V.  Barlow,  877 

V.  Daycock,  1021 

V.  Dickson,  134 

V.  Eastwood,  750 

V.  Edwards,  886,  893 

V.  Gt.  Western   Railw.    Co., 
952 

V.  Humpliray,  847 

V.  .Tames,  23 

V.  Parry,  768 

V.  Phillips,  230,    768,    1044, 
Ixxiii 
Phillipson  v.  Kerry,  51,  353 
Phosphate   Sewage   Co.  v.    Hartmont, 

182.  194 
Picard  r.  Hine,  .571,  .573,  584 
Pickering  v.  Ely  (Bp.  of),  941 

V.  Ilfracombe   Pail  way  Co., 
711 

V.  Stanford  (Lord),  424 

r.  Vowles,  54,  57 
Pickersgill  r.  Rodger,  407,  435 
Pickett  1'.  Loggon,   676 
Pickles  V.  Pickles,  448 
Pickstock  V.  Eyster,  308 
Pidgeley  v.  Pawling,  855 
Pierce  v.  Scott,  90 
Piercy  v.  Young,  945,  946 
Pierson  v.  Shore,  54,  1020 
Piggot  V.  Pen  rice,  273,  288 
Piggottr.Stratton,  71,806 
Pigot  V.  Bullock,  872  , 
Pigott  and  the    Gt.    Western  Railw. 

Co.,  In  re,  985 
Pike  r.  Fitzgibbon,  565,  586,  617 

V.  Vigors.  176 
Pilcher  v.  Rawlins,  702,  705 
Pile  V.  Pile,  786 
Pilkington  v.  Baker,  797 

V.  Gore,  71 
Pilsworth  V.  Mosse,  260 
Pimm  V.  Insall,  105 
Pindar?'.  Robinson,  Ixxvii 
Pine,  In  re  the  goods  of,  594 
Pinnel's  case,  400 
Piper  V.  Piper,  762,  763 
Pisani  v.  Att.-Gen.  for  Gibraltar,  199, 
201 


Pitcairn  r.  Ogbourne.  897 
Pittr.  Hunt.  512 
r.  Jack.son,  597 
r.  Mackreth,  141 
Pitts  r.,Snowden,  420 
Plant  I'.  Tavlor,  718 
Playford  v.  Playford,  682 
Playters  c.  Abbott,  63 
Pledge  i\  Buss,  126 
Plenty  v.  West,  742,  743 
Plews  V.  Baker,  946 
Plimmer  r.  Mayor  of  Wellington,    888 
Plumb  V.  Fluitt,  794 
Plymouth  v.  Archer.  998 
Pockley  v.  Pockley,  752 
Pocklington  v.  Bayne,  465 
Podmore?!.  Gunning,  903 
Pole  V.  Pole,  57,  237,  239,  260,  261,  265 

?'.  Somers  (Lord),  413 
Pollard,  Ex  parte,  778 

V.  Clayton,  917,  919,  930,  933, 

965 
V.  Greenvil,  280 
Pollexfen  v.  Moore,  358,  359,  363,  367, 

386 
PoUey  r.  Seymour,  989,  993 
Pomfret  (Earl  of)   v.  Windsor  (Lord\ 

718 
Poole's  Estates,  In  re,  595 
Poole  V.  Adling,  413 

V.  Middleton,  928 
V.  Olding,  409 
Pooleyi;.  Budd,  919,  965 

r.  Quilter,  180,  199 
Poor  V.  Mial,  1051 
Pope  r.  Biggs,  800 
Popham  ?C  Exham,  200,  209 
Porter,  Ex  parte,  140 
Portland   (Duke  of)    r.    Topham.  443. 

446,  464 
Portmore  (Earl  of)  v.  Morris,   155 

V.  Taylor,  678.  679 
Postlethwaite  v.  Lewthwaite,  71 
Pott,  Ex  parte,  783 

r.  Todhunter.  336 
Potter,  In  re,  508,  528 

V.  Commissioners  of   Revenue, 

942 
V.  Potter,  899 
Potts  V.  Curtis,  686 

V.  Potts,  39 
Poulet  (Ladv)  v.  Lord  Poulet,  459 
Poulson  r.  Wellington,  277;  473 
Powell,  Ex  parte,  784 
V.  Aiken,  871 
r.  Anon,  368 
V.  Han  key,  579,  621 
V.  Hellicar,  1086 
V.  Merritt,  1057 


TABLE    OF    CAFES. 


xl 


Vll 


[The  paging  refers  to  the  C']  pages.] 


Powell  r.  Price,  23,  21.  .'>! 

7\  Kill's^  7115,  751 
Powell  DuflVyn  Steiim  Coal  Co.  r.  Taff 

Kailw.  Co.,';)34,  5)52 
Power  V.  Power,  7(i3 
Powi.s  V.  Corbet,  722 
Powlett  ?•.  IJolton  (Dutchess  of ),  876 
Pownall  V.  Anderson,  327 
Powys  r.  lilajirave,  861 
Pracd  r.  (iardner,  130 
Prankerd  r.  Prankerd,  263,  261 
I'rebble  r.  Bof;hurst,  329 
Preesr.  Coke,  188,  208 
Price,  E.c  parte,  78."),  786 
Price,  //(  ;r,  StalTord  v.  vStafford,  Ixxv 

V.  Asslieton,  892 

V.  rUakemore,  251,  384 

V.  Byrne,  176,  211 

V.  Carver,  802 

r.  Fastnedge,  708,  722 

r.  .Jenkins,  330,  310,  1211 

f.  Morgan^  846 

V.  Penzance  (Corp.  of), 936 

V.  Price,  271,  310,  315 

V.  Salisbury,  887 

r.  "Williams,  944 
Prichard  r.  Ames,  545,  546 
Pride  v.  Bnbb,  5()4 
Prideanx  r.  Lonsdale,  482,  484 
Priestly  v.  Lamb,  528 
Primate  v.  Jackson,  699 
Primrose  v.  Bromley,  121 
Proby  r.  Landor,  274,  446 
,  Procter  r.   Warren,  348 
Prodgers  r.  Langham,  336 
Prole  V.  Soady,  432,  896 
Prosser  v.  Eice,  705 
Proudlev  r.  Fielder,  596 
Prvce  t."  Bury,  775,  779, 785,  801, 1127, 

1128 
Pryor  j'.  Hill,  534 

r.  Pryor,  451 
Pryse's  Estates,  In  re,  284 
Pugh,  Ex  parte,  519,  521 

III  re,  572 

r.  Vauglian,  857 

Pultenev   v.    Darlington    (Lord),    413, 

4.33,     976,     980,     992, 

lOOS,  1009,  101  ),  1013 

r.  AVarren,  871 

Pulvertoft  r.  Pulvertoft,  301,  335,  337, 

341 
Pumfrev,    In   re;    Ex  j)arte,    Hillman, 
340,  352 
In  re,  the  Worcester  City  & 
County    Banking    Co.     v. 
Blick,''2.50,  394 
Purdue  v.  .Jackson,  527 
Pusey  r.  Desbouvhe,  429 


Pusey  !•.  Pusey,  917,  961.  962,  963,961 
Pybiis  r.  Smith,  .5.39,  .567.  605,  610 
Pye,  Ex  parte;  Ex  parte  Du  Bust,  308 
r.  George,  807,  814,  833 


QfEADK's  Trusts,  In  re,  .558,  Ixxiv 
Queen  v.  De  Lancey,  982 
Qucensberry  case.  The,  457 
Quennel  ?'.  Turner,  740,  749 
Quilter  r.  Mapleaon,  48 


Raby-oastij:,  case  of,  816 
Radnor  (Earl  of)  r.  Shafto,  899 
Raggett,  lie,  708 
Raikes  v.  Hall,  93 

V.  Todd,  139 
Rainsdon's  Trusts,  In  re,  554 
Rakestraw  v.  Brewer,  60,  Ixxiii 
Ralph  V.  Carrick,  990,  994 
Ramsden  v.  Brearley,  5.53 
V.  Dyson,  888 
V.  Hylton,  338 
V.  Jackson,  .333 
r.  Smith,  617 
Ramskill  v.  Edwards,  Ixxiii 
Ranclifte  (Lord)  r.  Parkyns  ( Ladv),  406. 

409,  411,  412,  414 
Randall  r.  Daniel,  29.  34 

V.    Errington,   176,   178,    209, 

212,  213 
V.  Morgan,  337,  895 
V.  Randall,  233 
V.  Russell,  5.5,  56,  09 
Ranelagh's  (Lord)  Will,  In  re,  67,  68. 

69.  1102 
Ranelaugh  r.  Hayes.  944  * 

Rankin  v.  Barnes,  446,  4.53 
r.  Huskisson,  951 
V.  Weguelin,  1083 
Ranking  r.  Barnes,  466 
liaphael  r.  Thames  Valley  Ivailw.  Co., 

937 
Rashleigh  v.  Master,  977 
Ratcliffe  v.  Barnard,  795 
Ravenshaw  r.  HoUier,  304 
Raw,  In  re,  992 

Rawe  V.  Chichester,  54,  55,  57,  62 
Rawlins  v.  Birkett,  617 
Raworth  v.  Parker,  306 
Rawson  v.  McCausland,  764 
Ray,  Ex  parte,  547 
Rayne  v.  Baker,  385 
Rea  V.  Williams,  222 
Read  v.  Crop,  411,  413,  424 
V.  Snell,  29 


xlviii 


TABLE    OF    CASES. 


[The  paging  refers  to  the  [•]  pages.] 


Reddel  v.  Dobree,  1081 
Reddin  v.  Jerman,  888 
Bedding  v.  ^Yilkes,  886 
Kedington  v.  Redington.  239,  253,  258, 

261,  262,  263,  264,  265,  754,  757 
Redmavne  v.  Forster,  801 
Redsha'w  v.  Newbold,  802 
Reece  r.  Tiye,  965 
Reech  v.  Kennigate,  703 
Reed  v.  Norris,  131,  193 
Rees  V.  Berrington,  126,  131 
Reese  River  Silver  Mining  Co.  r.  Att- 

Avell,  345,  349,  35U 
Reeve  v.  Reeve,  754 
V.  Rocher,  534 
Reeves  v.  Creswick,  63 

r.  Reeves,  340,  965 
Regent's  Canal  Co.  v.  Ware,  912,  985 
Reg.  V.  De  Lancey,  982 
V.  Robinson,  133 
V.  Salter,  133 
Reid,  Ex  parte,  775 

V.  Reid,  426,  444,  Ixxv 
r.  Shergold,  280 
Reid's  case,  268 
Reilly  v.  Garnett,  797 

V.  Walsh,  227 
Remfry  v.  Butler.  927 
Remnant  i:  Hood,  459 
Rendlesham  v.  Woodford,  417,  419 
Reuuie  v.  Morris,  924 
V.  Ritchie,  605 
Rex  v.  Williams,  222 
Reynard  v.  Arnold,  1001  * 

V.  Spence,  422,  431 
Reynell  v.  Sprye,  676 
Reynolds,  Ex  parte,  211 
In  re,  1009 
v.  Clayton,  628 
V.  Godlee,  1048 
V.  McGloughlin,  758 
V.  Tor  in,  424 
V.  Waring,  892,  901 
V.  Wheeler,  123 
V.  Wright,  245 
Rhodes  v.  Cook,  455 

V.  Moxhay,  803 
V.  Rudge,  740,  742 
Rhys  V.  Dare  Valley  Railw.  Co.,  913 
Rice  V.  Gordon,  111,  676 

v.  Rice,  374,  388,  796 
Rich  V.  Ccckell,  418,  538,  545,  562,  581, 
582 
r.  AVhitfield,  981,  993,  1006 
Richards  v.  Borrett,  783 

V.  Del  bridge,  315,  1206 
V.  Noble,  871 
V.  Revitt,  951 
I".  Syms,  1064, 


Richard.son's  case,  268 
Richardson,  In  re;  Shillito  r.   Hobson, 
Ixxiv 
r.  Horton,  105,  345 
V.  Moore,  64 

V.  Richardson,  315, 316,  321 
V.  Small  wood,  345 
r.  Smith,  947 
Richie  r.  Couper,  195 
Richmond  v.  North  Lond.  Railw.  Co., 

985 
Ricketts  ?•.  Lewis,  104 
Riddell  v.  Berrington,  557 
Rider  v.  Kidder,  244,  253,  255 
Ridgway,  In   re;    Ex  parte    Ridgway. 
Ixxiv 
V.  Woodhouse,  1050 
Ridler,  In  re;  Ridler  v.  Ridler,  340 
Ridley,  In  re;  Buckton  r.  Hay,  611 
Ridout  V.  Lewis,  620 

V.  Plymouth  (Earl  of),  621 
Rigby  V.  Connol,  941 

V.  Gt.  Western  Railway  Co.,  9C2 
V.  M'Namara,  123 
Rigden  v.  Vallier,  222,  223,  224,  1086 
Riordan  v.  Banon,  903 
Ripley  v.  Waterworth,  233,  1047 
Rippon  V.  Dawding,  546 
Rishton  v.  Cobb,  532 

r.  Whatmore,  893 
Rittson  V.  Stordy.  988 
Rivers  (Earl)  v.  Earl  Derby,  459 
Rivett-Carnac's   (Sir   J.)   Will,  In   re, 

Ixxiii 
Roach  V.  Trood,  449,  455 
Roadley  v.  Dixon,  421 ,  422,  423 
Roberts,  In  re,  790 
Roberts'  Trusts,  In  re,  508 
Roberts  v.  Collett,  527 
Roberts  v.  Croft,  746,  783,  796 
V.  Dixwell,  30.  34,  597 
V.  Kinc;sley,  51 
V.  Uoyd,  319,  323 
V.  Pocock,  749 
V.  Roberts,  212,  748 
V.  Smith,  424 
V.  Spicer,  550 
V.  Trenavne,  629,  640,  652, 657, 

666" 
i:  Tunstall,  211,  214 
r.  Walker,  741,  1042,  1044 
Robertson,  In  re,  1025 

V.  Norris,  187,  188 
Robinson,  Ex  parte,  784 
Robinson's  Settled  Estate,  Ee,  516 
Robinson,  In  re,  Ixxvii 
V.  Briggs,  702 
r.  Chartered  Bank,  927 
V.  Davison,  703 


TABLE  OF  CASES. 


xlix 


[Tho  paging  refers 

Robinson    v.  Gee,  7r)5 

r.  Lit  ton,  8()D,  817,  841,  860 
r.     London  Hospital   (Gov- 
ernors of  J,    loll,   1().'):5 
r.  Lowater,  83,  84,  98,   101, 

102 
V.  Nesbitt,  711 
V.  Pickerinf?,  58,5 
V.  Preston,  2:12,  223 
V.  Ridley,  209 
V.  Robinson,  988,  992,  997. 

1001 
r.  Kfisher,  798 
V.  Taylor,  1042 
V.  Trevor,  718 
r.  Wbeelwrieht,  433,  618 
V.  Wilson,  126.  422 
Robson  V.  M'Creifrht,  342' 
Rocbe  V.  O'lJrien,  212,  213,  214,  G84 
Rochtbrd,  lie,  613 

I'.  Dawes,  770 

V.  FitzTnanrice,  24,  2.5,  29,  32 
Rock  V.  Gorrisen,  791 
Rodders  r.  Marsball,  271,  276,  328 
Rodhouse  r.  Mold,  768,  771 
Roe  V.  Mitton,  339,  ^41 
Rogers  v.  Cliallis,  929,  954 

V.  Jones,  407,  431,  435 
r.  Mackenzie,  121 
V.  Rogers,  1044 
V.  Skillicorne,  80,  84,  91 
Rolfe  r.  Chester,  721 

I'.  Gregory,  110,  112,  249 
V.  Perry,  763 
Rollfe  V.  Budder,  545 
Rolls  V.  Pearce,  10S2 
Rolt  v.  Somerville  (Lord),  864,  874 
Ronayne's  Estate,  In  re,  202 
Rook  r.  Worth,  1013    1018,  1026 
Rooke?\  Kensington  (Lord),  761 
Rooper  t\  Harrison,  701,  707,  719 
Roscommon  r.  Fowke,  296 
Rose  V.  Bartlett,  401,  404 
V.  Rolls,  .525 
V.  Sharrod,  610 
V.  Wafson,  379,  393 
Rosenthall's  Settlement,  Re,  595 
Rosher  r.  Williams,  336,  340 
Ross's  Trnst,  610 
Rossiter,  In  re,  76(i,  767 
V.  Rossiter,  23 
V.  Walsh,  191 
Roswell's  case,  288 
Rotherham  r.  Rotherham,  768 
Rothschild  v.  Brookman,  194 
Roundell  v.  Currer,  432 
Routledge  v.  Dorril,  449 
Row,  In  re,  1009 

V.  Bowdeu,  237 
4   WHITE  ON    EQUITY. 


to  the  [*]  pagefi.] 

RowlM)tham  r.  Dnnnett,  904,  905 
Rowc  V.  .Jackson,    19 1,    -196,    -197,    499, 
501,  506,  517 
r.  Rowc,  5H2 
Rowland  v.  Cuthbertson,  42.5 

V.  Morgan,  38 
Rowley  i'.  Adams,  2.34 

V.  Rowley,  444,  4.52,  453 
r.  Unwin,  579 
Rowson  r.  Harrison.  764 
IJiidgc  r.  Weedon.  551 
Knfiles  V.  Alston,  511 
linnihold  v.  Rnmbold,  419 
Rnmboll  r.    Rumboll,   238,    241.    24.5, 

260,  261 
Rnmford  IMarket  case,  54 
Rnndle  v.  Rnndle,  237,  242,  245,  253 
Rushljrook  r.  Lawrence.  188 
Rushlbrth,  Rr  parte,  135,  137,  139 
Rusbworth,  Ex  jxirte,  139 
Rushworth's  case,  60 
Russel  !'.    Russel,   773,  774,   779.   788, 

801,  1122 
Russell,  Ex  parte,  345,  352 
V.  Anstwicke,  196 
r.  Jackson,  904,  905,  906 
r.  Plaice,  107 
Russell  Road  Purchase   Money,  In   re, 

703,  706 
Rutherlbrd,  Ex  parte,  346 
Rutter  r.  Daniel,  786 

V.  Maclean,  413 
Ruvigne's  case,  183 
Ryall  r.  Rowles,  324,   433,    528.   1065, 
1074 
V.  Rvall,  247.  248,  249 
Ryan,   Thomas,   In    re,   225,  230,  245, 

'892 
Rycroft  r.  Christie,  311,  326,  550 
Ryland  v.  Smith.  535 
Ryle  r.  Swindells,  686 

Sabin  v.  Heape,  94,  101 
Sackville  r.  Smyth,  767,  768,  770,  771 
Sackville   West    v.   Viscount  Holmes- 
dale,  20,  21,  24,  28,   34,   39,   44,  45, 
47,  48 
Sadler  r.  Pratt,  453 
Sadlierr.  Butler,  409,  410,  412 
St.  Albyn  r.  Harding,  678,  679,  693 
St.  Amand  v.  Jersev  (Lady),  344 
St.  Germains  (Earf  of )  r.  Crystal  Pal- 
ace Railway  Company,  377 
St.  George  r.  'Wake.  482,  483 
Salkeld  r.  Abbott.  123 
Salmon  r.  Cutts.  200.  213,  214 

r.  (Ubbs,  445,  449 
Salt  V.  Chattaway,  741,  1041,  10.56 
Salter  v.  Bradshaw,  678,  679,  693,  694 


1 


TABLE    OF    CASES. 


[The  paging  refers 

Salwey  r.  Salwey,  529 
Sanipayo  v.  Gould,  44 
Samuda  v.  Lawlbrd,  955 
Samuel  v.  Samuel,  29,  30 
Samwell  v.  Wake,  740 
Siinders  i:  Deligne,  702 
V.  Kiohards,  108 
V.  Eodway,  943 
SaJiderson,    Ex  parte;    Re   Alexander, 
139 
V.  Cockermouth  and  Work- 
ington Rail.  Co.,  936 
r.  Walker,  176,  211 
Sandwich  (Earl  of)  v.  Lichfield  (Earl 

of),  70 
Sanger  v.  Sanger,  590 
Sarth  r.  Blanfrey,  274,  277 
Saunders  v.  Dehew,  70G,  715 

V.  Leslie,  384 
Savage  v.  Carroll,  888,  892,  900 
V.  Foster,  888 
V.  Humble,  106 
Savery  v.  King,  200,  212 
Savile  v.  Blacket,  749 
V.  Kinnard,  984 
Savill  V.  Savill,  416,  433 
Siiville  V.  SaviUe,  816,  869 

V.  Tankred,  964 
Saville's  case,  13,  816,  869 
Sawyer  v.  Goodwin,  130 

V.  Shute,  526 
Saver  v.  Sayer,  271 
Sayers  v.  Collyer,  956,  957 
Savre  v.  Hughes,  256,  258 
Scales  V.  Baker,  582 

V.  Maud,  310,  315,  1205 
Scarborough  v.  Borman,  614,  615 
Scarisbrick  v.  Skelmersdale  (Lord),  21 
Scarsdale  (Lord)  v.  Curzon,  26,  28,  39 
Scarth,  In  re,  977 
Scatterwood  v.  Edge,  832 
Scawin  v.  Scawin,  263,  265 
Scholefield  v.  Spooner,  616 
Schroder  v.  Schroder,    406,    407,    417, 

419 
Scott's  Estate,  Be,  717 
Scott,  Ex  parte,  800 

V.  Beecher,  754,  758 
V.  Davis,  282,  610 
v.  Dunbar,  684 
V.  Knox,  126 
V.  Rayment,  939,  954 
V.  Spashett,  508,  520,  534 
V,  Steward,  46 
V.  Tyler,  106,  111 
Scould  V.  Butter,  907 
Scriven  v.  Tapley,  496,  503,   506,   516. 

517 
Scroggs  V.  Scroggs,  463 


to  tho  [*]  pages,  ] 

Scroope  v.  Seroope,  237,  260 

Scudamore  v.  Scudamore,  973,  976.  978, 

981,  1039 
Seabourne  v.  Powel,  61 . 
Seagood  v.  Meale,  886 
Seagram  v.  Knight,  212,  859,  876,  877, 

878,  879,  880 
Seagrave  v.  Kir  wan,  288 
Scale  V.  Hayne,  354 

V.  Scale,  29 
Sealey  v.  Stawell,  34 
Seaman  v.  Woods,  413 
Searle  v.  Law,  314 
Seeley  v.  Jago,  1004,  1007 
Seilack  r.  Harris,  903 
Selby  V.  Cooling,  108 
V.  Pomfret,  716 
V.  Selby,  362,  386 
Selkrig  v.  Davies,  230 
Sells  V.  Sells,  49,  50 
Selsey  (Lord)  r.  Rhoades,  191 
Sergeson  v.  Sealey,  272,  275,  277,  1015, 

1016,  1018 
Serle  v.   St.   Eloy,  727,  729,  732,  752, 

753,  768 
Seton  V.  Slade.  953 

Severance  ?■.  Civil  Service  Supply  As- 
sociation, 588 
Sewell  V.  Moxsy,  319 
r.  Walker.  679 
Seymour  v.  Tresilian,  621 
V.  Vernon,  1026 
Sevs  V.  Price,  1019 
Shackle  r.  Baker,  941,  950 
Shadbolt  v.  Thornton,  988 
Shaftesbury  (Earl  of)  v.  Marlborough 

(Duke  of),  63 
Shafto  c.  Adams,  683 
r.  Shafto,  755 
Shaken  r.  IMarlborough  (Duke  of ),  803 
Shakespear,  In  re,  Ixxv,  Ixxvi,  Ixxvii 
Shallcross  v.  W^eaver,  210 

V.  Wright,  745,  1044 
Shanley  v.  Baker,  1056 
I  r.  Harvey,  1083 

Shannon  v.  Bradstreet,  272,   275,   277, 

278,  284,  286,  287 
Shard  v.  Shard,  1025 
Shargold  r.  Shargold,  1071,  1074 
Sharp  r.  Leach,  679 

r.  St.  Sauveur,   988,   1005,  1010 
Shai-pe  V.  Foy,  703 
Sharpless  v.  Adams,  705,  706 
Sharpley  v.  Hurrel,  640,  652 
Shattock  V.   Shattock,    568,    572,   573, 

574,  594 
Shaw,  In  re,  1024 

V.  Borrer,  77,  83,  88,  89,  95,  96 
V.  Bunny,  188 


f 
I 


TABLE  OF  CASES. 


u 


[The  paging  refers 
Shaw  r.  Fishor,  921,  922,  926 
J).  Foster,  781 
r.  .I(tlnisf)n,  718 
V.  Nciile,  707,  714 
r.  Wci^li,  5,  9,  16 
Bhoddon  v.  (JoDdricli,  418 
Slu'Hiokl  Gas  Coiisuiners'  Co.  v.  Har- 
.  rison,  922,  940 
Sh(4licl(l   Union  Bank   Co.,    Ex  parte, 

78:5,  788 
Shplford  V.  Acland,  563 
Slielly's  case.  8,  19,  21,  697 
Shelley  r.  Shelley,  20,  42 
Shelly  V.  Nash,  d^^^ 
Shelton  r.  Watson,  29,  30,  33 
Shei'liRiirtl  '■•  Walker,  889 
Shei)heid,    Ex  parte;  In  re  Shenherd, 
590 
V.  Gillespie.  926 
r.  Titley,  713.  714 
Shepley  ?•.  Woodhousr,  632 
Sheppard  r.  ISIuri.hy,  92.3,  927,  928 
Sheridan's  Estate,  //(.  re,  341 
Sherly  v.  Fagg,  702 
Sherman,  Ex  parte,  798 
Sherwood  v.  Robins,  679 
Shewell  v.  Dwarris,  550 
Shield,  In  re;  Pethybridge  r.  Btirrow, 

310.  Ixxiv 
Shilleto  r.  Collett,  .525 
Sliillibcer  r.  .larvis,  887,  890 
Shillito  )'.  Ilobson,  Ixxiv 
Ship])erdson  v.  Tower,  993 
Shipton,  Rector  of,  In  re,  983,  984 
Shii>way  v.  Ball,  .528 
Shirlev  r.  Martin,  695 
Short  r.  Wood,  1008 
Shower  r.  Pilek,  :>()!,  Ixxiv 
Shrewsbury   (Earl  of)    r.   North   Staf- 
fordshire Railwr.y  Co.,  57 
Shropshire  Union   Railways   &   Canal 

Co.  V.  the  (^icen,  793,  794 
Shnrmur  r.  Sedgwick,  338 
Sibbering  v.   Balcarras  (Earl  of),  684, 

694 
Sichel  V.  Mosenthal,  929,  939 
Siddon  r.  Charnells,  702 
Sidebotham,  E.r  jxirle,  933 

r.  Watson.  749 
Sidniouth  v.  Sid  mouth,  239,  244,  255, 

2.59,  261,  263,  2(>4,  265 
Sidney  v.  Miller,  10.50 
r.  Ranger,  202 
r.  Shelley,  1050 
Siggers?'.  Evans,  :;()!,  305,  348 
Silk  r.  Eyre,  134 

V.  Prime,  56>! 
Simmins  r.  Shirlev,  860 
Simmonds  r.  Palles,  304,  305 


to  the  [•]  pngep.] 

Simmons  r.  Pitt,  1043,  1051 
r.  Rose,  741 
r.  Simmons,  544 
Simpson  r.  Ashworth,  990 
Sims  r.  Thomas,  342,  348 
Simson  r.  Jones,  535 
Sinclair  c.  Jackson,  716 
Singleton  v.  Tomlinson,  905,  1053 
Sinnett  I'.  Herbert,  748 
Sisson  I'.  Giles,  433,  1005,  1007,  1011 
Skarfv.  Soulby,  343 
Skeats  v.  Skeats.  260,  261,  263 
Skegg's  Settlement,   In  re,  1007,  1025 
Skelton  v.  Flanagan,  455 
Skidmore  v.  Bradford,  258,  895 
Skingley,  In  re,  861 
Skinner,  Ex  parte,  208 
Slack  V.  Midland  Railway  Co.,  959 
Slack  ford  v.  Long.  1037 
Shinning  r.  Style.  552 
Slater's  Trusts,  In  re,  689 
Slater  r.  Willis.  245 
Sleech  v.  Thorrington,  489,  531,  532 
Sloane    r.   Cadogan   (Lord),   275,   317, 

319,  342 
Slocombe  r.  Glubb,  478,  483 
Smallman's  Estate,  Re,  565 
Smallman  r.  Onions,  872 
Smartle  v.  AVilliams,  336 
Smedley  v.  Varley,  197 
Smith's  case,  7)1  re  South  Durham  Iron 
Co..  777 
Gye,  790 
Smith,  Ex  parte;  re 'Hildyard,783,765, 
788,  790 

In  re ;  Chapman  r.  Wood,  608 

Marv,    a    lunatic.    In    re,    1013, 
]'()16 

V.  Ashton,  275,  279 

V.  I5aker,  237,  242.  244,  269,  274, 
276 

v.  Bloxam,  722 

V.  Boucher.  803 

V.  Cam  el  ford  (Lord),  467,  579 

V.  Casen.  1()H7 

r.  Cherrill,  340,  343.  346,  353 

r.  Chichester.  60 

V.  Claxton,  972,  1006,  1045,1046 

V.  Constant,  781 

V.  Cooke,  871 

V.  Death,  462 

V.  Dormer,  830 

V.  Evans,  385 

r.  Fitzgerald,  749 

V.  Garland.  :>36 

r.  (Juvon.  80,  83 

r.  Hibbard,  361,  368,  376 
r.  Houblon.  462 

V.  Hurst,  304,  308 


Il] 


TABLE  OF  CASES. 


[The  paging  refers 
Smith  V.  Iliffe,  51,  52 
!).  Kay,  678 
r.  Keating,  304 

V.  Lucas,  408,  433,  434,  617,  618 
r.  Lvne,  302,  326,  413 
V.  ]\iatthews,  229,  309,  510,  523 
V.  Peters,  948 
v.  Smith,  227,  232,  321,  520,  606, 

764,  1085 
V.  Spence,  408,  434 
V.  Tatton,  345 
V.  Turner,  887 
V.  Warde,  267,  305 
Smithers  v.  Green,  522,  523 
Smithsou  v.  Thompson,  711 
Smithwick  (;.  Sniithwick,  989 
Sneed  r.  Sneed,  274,  279 
Snell,  Ec,  136 
Snellgrove  v.  Baily,   1060,  1064,  1072, 

1083 
Snelling  v.  Thomas,  898 
Snelson  v.  Corbet,  621 
Snowdon,  Ex  parte,  123 
Soames  v.  Edge,  935,  936,  954 
Soar  V.  Foster,  256 
Societo  Generale  de  Paris  v.  Tramways 

Union  Co.,  796 
Sockett  V.  Wray,  542,  569,  60S 
Solomon  v.  Solomon,  762 
Somerset  (Duke  of)  v.    Cookson,   917. 

962,  963 
Somerville  v.  Mackay,  196 
Somes  V.  British  Euipire  Shipping  Co., 

944 
Sunday's  case,  1 1 
Sondes'  (Lord)  Will,  In  re,  455 
Soome  V.  Glen,  652 
Sjpwith  V.  Maughan,  420.  431 
Soutar's  Policy  Trusts,  In  re,  556 
South  V.  Bloxam,  127 
Suuth  Durham  Iron  Co.,  In  re;  Smith's 

case,  777 
South  Eastern  Railway  Co.,  In  re,  1009 
South  Essex  Gas  Co..  Re,  187 
South  Wales  Railway  Co.   v.  Wythes, 

933,  936,  9:57,  944 
Southall  V.  British    Mutual   Life  Ass. 

Society,   184 
Southampton  (Lord)  v.  Brown,  329 

V.      Marquis      of 
Hertford,  1050 
Sowarsby  v.  Lacy,  82 
Sowerby  v.  Fryer,  858 
Spackman  v.  Foster,  780 

V.  Timbrill,  105 
Spalding  v.  Ruding,  128 

V.  Shalnier,  73,  90 
V.  Thompson,  721 
Sparkes  v.  Bell,  589 


to  the  [•]  pages.] 
Span'ow  V.  Shaw,  9,  16 
Speer's  Trusts,  In  re,  983 
Spencer,  /«  re,  Ixxvii 

V.  Harrison,   1004,  1005 

V.  Pearson,  703,  704,  707 

V.  Scurr.  856 

V.  Slater,  308,  34s 

V.  Spencer,  465,  467 

V.  Topham,  2oO 

V.  Wilson,  1053 
Sperling  v.  Rochtort,  524 

V.  Toll,  994 
Spicer  v.  Dawson,  599 

V,  Spicer,  530 
Spiller  V.  Spiller,  803 
SJjirett  V.  Willows,  343,  344,  519,  521, 

522,  529,   1202 
Sporle  V.  Whayman,  779 
Spottiswood's  case,  120 
Spottiswoode  v.  Stockdale,  306 
Spratley  v.  Wilson,  1085 
Spring  V.  Allen,  801 

V.  Pride,  176,  178,  608 
Springett  v.  Jennings,  904 
Sproule  V.  Prior,  362,  386 
vSpurgeon  v.  Collier,  337,  897 
Spurway  r.  Gljnn,  748 
Squire  v.  Dean,  579 
Squires  v.  Ashford,  514,  532 
Stacey  v.  Elph.  180 
Stackhouse  v.  Jersey  (Countess  of),  785 
Stackpole  v.  Beaumont.  528 
Stackpoole  v.  Stackpoole,  335,  340 
Stafibrd  v.  Staflbrd,  Ixxv 
Stamford    (Earl  of)  v.  Hobart,  6,   17, 

18,  33 
Stamford,  Spalding,  &c.,  Bank  v.  Ball, 
562 
V.  Omly,  287 
Standard  v.  Metcalf,  638 
Standen  v.  Bullock,  .334 
Standering  v.  Hall,  1006 
Standford  v.   Marshall,  539,    542,  570, 

584 
Standing  v.  Bowring,  253,  Ixxiv 
Stanford  v.  Hurlstone,  864 
Stanhope  r.  Verney,  389,  718 
Stanilaud  v.  Willot,  1078,  1079 
Stanley  r.  Coulthurst,  47 

V.  Jackman,  36,  37,  46,  48 

V.  Stanley,  20,  607 
Stansfield  v.  Habergham,  860 
Stanton  v.  Hall,  514,  515,  546 

V.  Percival,  920 
Stapilton  v.  Stapilton.   339,   683,  943, 

1180 
Stapleton  v.  Colvile,  726.  737 
V.  Haymen,  931 
V.  Stapleton,  38,  310 


TAP.LE    OF    CASES. 


liii 


[The  imfjin;,'  refers 

Stead  V.  Galley,  5:^ 
V.  Nelson,  5G3 

V.  Newcligate,  981,  5)84, !)!»;>.  1007, 
lOO'J 
Steed  V.  Pieeee,  972,   101:5,   1021,  1023 
Steedman  v.  Poole,  608 
Steel  V.  Dixon,  125 
Steele  v.  Murphy,  30 1 

V.  Waller,  310,  327 
Steeven'.s  Hospital  r.  Dyas,  892 
Steinmetz  r.  llalthin,  518 
Stephen's  Estate,  In  re,  797 
Stephens  v.  Olive,  338,  943 

V.  Stephens,  409,  412 
Stephenson.  In  the  goods  of,  596 

V.    Heathcotc,    728,    738, 
740,  742 
Stepney  v.  5iddulph,  211 
Stevens,  E.c  parte,  308,  378 

r.  Savage,  528 
Steward  v.  Blakeway,  233,  598,  599 
Stewart,  In  re,  1007,  1024 

Ex  parte;  re  Shelley,  775 
r.  Henry,  409 
Stiad  r.  Nelson,  280 
Stiokland  v.  Aldridge,  902,  903,  904 
Stifle  V.  Everett,  514 
Stileman  r.   Ashdown,  237,   2(i0,   262, 

338,  314 
Stiles  V.  Cowper,  278,  287,  893 
Stilwell  V.  Wilkins,  676 
Stirling  v.  Forrester,  120   122 
Stock  V.  McAvoy,  263,  264,  265 

'v.  Vining,  52 
Stocker  v.  Brocklebank,  941 

V.  Harbin,  741 
Stockley  v.  Stockley,  883 
Stokes,  Ex  parte,  140 
V.  Clarke,  70 
V.  Moore,  886 
Stokoe  i\  Cowan,  342 
Stone's  Estiite,  In  re,  468 
Stone  V.  Godfrey,  339 

V.  Lidderdale,  647 
V.  Parker,  764 
V.  Stone,  264 

V.  Stone  and  P>rownrigg,  577 
V.  Thomas,  199 
Stonor's  Trusts,  lie,  617 
Stonor  I'.  Curwen,  22.  30,  32 
Storer  r.  Great  Western  Kailway  Co., 

935,  936 
Storey  v.  Waddle,  959 
Storry  r.  Walsh,  8:5,  105,  108 
.  Strafford's  (Lord)  case,  159 
Strahan  v.  Sutton,  420,  422 
Stranije  v.  Fooks,  131 
Stratlbrd   v.  Aldborough   (Lord),   282, 
286 


to  the  [*]  pages.] 

Stratford  (•._  Powell,  21,  431 

r.'Twynam,  206 
Strathinore    (Countess  of)    r.    Howes, 

471,  479,  480,  482,  485,  864 
Stratton  v.  Best,  413 

V.  Murphy,  61,  63,  209 
Stray  r.  Russell,  927,  928 
Streatfield  v.  StreatUeld,  22,   51,  397, 

405,  406,  4:;0,  432 
Street  v.  Kighy,  944 
Strett  V.  Widniore.  248,  Ixxiv 
Strode  v.  Kussei.  275 

V.  Winchester,  903 
Strong  r.  Bird,  302,  327 

r.  Strong,  344 
Stroud  r.  Norman,  455 
Stroughill  V.  Anstey,  87,  88,  91,  92,  94. 

Ill 
Stuart  I".  Castlestuart,  (Lord),  4.15 
V.  Ferguson,  383 
r.   Kirkwall    (Lord),    570.   572, 

584 
V.    Lond.    and   North   Western 
Railway  Co.,  901 
Stubbs?).  Roth,  61,  03 
V.  Sargon,  528 
Stuclev's  Settlement,  In  re,  989 
Stump  r.  Gaby,  214,  694 
Sturgis  V.  Champnevs,  507,    508,  510, 
511,    512,    513,    514,    532, 
534    1129 
V.  Corp,' 562,  586.  610 
Suggitt's  Trusts,  In  re.  519,  521 
Summers,  In  re,  772 

V.  City  Bank,  579,  603 
V.  Griffiths,  676 
Sumpter  r.  Cooper,  775,  784,  800 
Suppler.  Lowson,  448 
Surcombe  v.  Pinniger,  894 
Surridge's  Trusts,  In  re,  527 
Surtoes  v.  Surtees,  33 
Sutcliffe  V.  Cole,  1050 
Sutherland  v.  Briggs,  888,  889,  901 
Sutton  V.  Chetwyud,  340 
Sutton  V.  Jones,  180 
V.  Sutton,  722 
Swain  r.  Wall,  117.  123.  124,  125 
Swainson  r.  Swainson,  754,  759 
Swan's  Estate,  /;(  re,  124 
Swan,  lie,  134,  508,  524,  529 

V.  Holmes,  405,  412 
Swannock  v.  Lj^ford,  485 
Sweet  r.  Meredith,  956 
Sweet  )'.  Southcote,  703 
Sweetapple  r.   Biudon.  4,   10,    11.   28, 

971,  970 
Sweeting  r.  Sweeting.  904 
Sweetman  v.  Sweetman,  431 
Swift  u.  Davis,  264 


liv 


TABLE    OF   CASES. 


[The  paging  refers 
Swinburn  r.  Ainslie,  874,  Ixxviii 
Swire  v.  Redman,  123 
Syer  v.  Gladstone,  Ixxiv 
Svers  r.  Syers,  940 
Svkes'  Trusts,  Be,  303,  573,  605 
Sykes  v.  Sheard,  993 

r.  Sykes,  1045 

V.  Sykes  and  Smith,  577 
Symes  r.  Hughes,  350 
Symmes  v.  Symonds,  717 
Symmons  v.  Rankin,  373,  374 
Symonds  v.  Hallett,  600 

r.  Wilkes,  48.  611 
Symondson  v.-  Tweed,  892 
Symons  v.  Rutter,  992 
Sympson  v.  Hornsby,  424 
Synge  v.  Hales,  34 

r.  Synge,  414 
Synnot  r.  Simpson,  304,  307,  308 


Tag  ART,  Ex  parte,  785,  786 
Taggart  v.  Taggart,  24,  25,  36 
Tahiti  Cotton  Co.,  In  re;  Ex  parte  Sar- 
gent, 775 
Tait  V.  Lathbury,  83,  994 

V.  North  wick  (Lord),  740,  742 
Talbot  V.  Cody,  259 
V.  Frere,  721 
(Earl)  V.  Hope  Scott,  864 
r.  Radnor,  416 
V.  Staui forth,  679,  682,  683 
Tamplin  v.  James,  958 
V.  Miller.  619 
Tamworth    (Lord)    v.  Ferrers  (Lord), 

865 
Tanfield  r.  Davenport,  488 
Tanfield's  case,  667 
Tankerville  (Earl  of)  v.  Fawcett,  755 
Tanner,  Ex  parte,  198 

V.  Ellworthy,  56,  57 
V.  Wise,  965 
Tanqueray-Willaume  &  Landau,  In  re, 

90,  94,  101 
Tapley  v.  Kent.  1081,  1086 
Tarback  v.  Marbury,  344 
Tardiff  r.  Robinson^  64,  66 
Tardifle  v.   Scrughan,  367,    373,    381. 

382 
Tarleton  v.  Liddell,  338 
Tarsey's  Trust,  In  re,  547 
Tasburgh's  case,  524 
Taster  v.  Marriott,  55 
Tate  )•.  Hilbert.  ]()77.  1078,  1079,  1082, 
1089, 1086 
V.  Leithead,  313,  1079,  1087 
?•.  Williamson,  207 
Tatham  v.  Drummond,  595 
V.  Piatt,  901 


to  the  [*]  pages.] 

Tathem  v.  Vernon,  20,  271,  327 

Tatlock  V.  Jenkins,  741 

Taunton  v.  Morris,  520,  521 

Taylor's  Settlement,  In  re,   993,   1024, 

1025,  1041 
Taylor,  Ex  parte,  183 

In  re,  1017,  Ixxix 

V.  Alston,  241 

V.  Auston,  515 

V.  Beech,  894 

V.  Bowers,  351 

V.  Coenen,  343,  344 

V.  Davis,  951 

V.  Eckersley,  929 

V.  Fleming,  222 

V.  Hawkins,  108,  111 

V.  Haygarth,  1045,  1057 

V.  Horde,  205 

V.  Jones,  343 

V.  Linley,  423 

V.  ]\Ieads,  549,  564,  568,  600 

V.  Mills,  135 

V.  Neville,  916,  917,  918 

V.  Poncia,  104 

V.  Portington,  901 

V.  Pugh,  483 

V.  Rochford,  152,  643 

V.  vSalmon,  193 

r.  Stibbert,  287 

r.  Stray.  929 

V.  Taylor,  237,   262,  265,   422, 
585,  1044,  1056 

V.  Wheeler,  272 
Taylour  r.  Rochford,  152,  643 
Teague's  Settlement,   In  re,  611 
Teasdale  r.  Braithwaite,  338 
Tebb  V.  Hodge.  712 
Tebbitt  v.  Tebbitt,  52 
Tee  r.  Ferris,  904 
Teed  v.  Carruthers,  379 
Telegraph   Despatch,  &c.,   Co.    v.  Mc- 
Lean, 953 
Tempest,  In  re,  205 
Temple  v.  Baltinglass,  286 
Tench  v.  Cheese,  740 
Tennantr.  Trenchard,  180,211 
Tennent  v.  Tennent,  34,  188,  676 
Thacker  v.  Key,  464 
Thackwell  v.  Gardiner,  280,  562 
Tharp,  In  the  goods  of,  289,  290,  563, 

599 
Thayer  v.  Lister,  304 
Theilusson  v.  Woodford,  410,  417,  419 
Thomas  r.  Bennett,  621 
V.  Burne,  63 
V,  Buxton,  392 
x\  Spencer,  Ixxvii 
I'.  Thomas,  721 
V,  Townsend,  90 


TABLE    OF   CASES. 


Iv 


[Thf  paginfj  refers  to  tho  [*]  pftRPs.] 


Thomas  v.  Williams,  4(i(),  81 1 
Thomas's  Settlement,  /;;  re,  7i) 
Tliomlinson  r.  Smith,  108 
Thompson's  Trusts,  In  re,  988 
Thompson,  E.r  parte,  oOD 
V.  Buna,  4:2:5 
V.  FisluM-,  2!) 
V.  llefiernau,  1081,  108G 
V.  Hodgson,  1088 
V.  Leake.  1)30 
V.  Nelson,  421 
V.  Simpson,  52 
V.  Towne,  273 
V.  Watts,  42r> 
V.  Wel)ster,  339,  343,  347 
V.  Whit  more,  49,  51,  .358 
Thompson  and  Curzou,  In  re,  Ixxv 
Tliompson  v.  Simpson,  444 
Tliorn  r.  The  Commissioners  of  Public 

Works,  917 
Thornber  v.  Wilson,  988 
Thornbury  c.  IJevil,  942 
Thornton  i\  Bri-jht,  G17 

V.  Dixon,  230,  233,  234 
V.  llawiey,  981,  992 
V.  McKewan,  137,  139 
V.  Thornton,  409,  413 
Thorold  v.  Thorold,  1070 
Thorpe,  Ex  parte,  800 

V.  Holdsworth,  718,  783 
V.  Hosford,  929 
V.  Owen,  310 
Three  Towns  Banking  Co.  v.  ]Madever, 

350 
Thrupp  r.  Harman.  580 
Thwaites,  Ex  parte,  198,  214 
Thynn  r.  Thynn,  903 
Thynne  (Lady)  v.  Gleugall  (Earl  ol), 

892 
Tibbitts  V.  Phillips,  227 

V.  Tibbits,  40G,  431 
Tidd  ('.  Lister,  514.  520,  532 
Tierney  v.  Wood,  302,  311,  312 
Tilv  V.  Smith,  991 
Tipping  V.  Pigot,  833 
V.  Power,  801 
V.  Tipping,  621,  622 
Todd,  In  re,  527 
V.  Gee,  953 
r.  Moorehouse,  258 
Toft  r.  Stephenson,  321  • 
Tollemaehe  r.  Coventry,  18,  38,  41 

('.  Tollemache,  877 
Toilet  V.  Toilet,  2(59 
Torakins  v.  Colthurst,  769 
Tomkiuson  r.  Staight,  901 
Tomkyns  v.  Blane,  42(5 

f.  Ladbrooke,  431 
Tomliuson  c.  Leigh,  50 


Tommcy  r.  White,  214 

Tiinnics,  In  re,  352 

Tooker  r.   Annesley,  877 

Toole  r.  Medlicott,  887,  892,  900 

Topham  v.  Constantine,  376 

r.    Portland    (Duke    ofj,  443, 
446,  447,  448,  453 

Torrance  r.  Bolton,  392 

Torre  r.  Torre,  50 

Torrington  (Vi.sc. )  v.  Lowe,  920 

Tottciiliam's  Estate,  In  re,  57 

Tottenham  ?'.  P^mmett,  677 

V.  Green.  678,  691,  692 

Touche  r.  Jletropolitan  Pailway  Ware- 
housing Co.,  3;J0 

Tournav  v.  Tournay,  459 

Tourvil'le  r.  Naish,  360 

Tower  r.  Pons  (Lord),  740,  742,  745 

Town  Ex  parte,  199 

Townend  r.  Toker,  336,  337,  339 

Townleyr.  Bedwell,  1001,  1002 

Townsend  v.  Devaynes,   2:50 
r.  Lowfield,  659 
V.  Westacott,  343 

Townshend  v.  Mostvn,  752,  753,  756 

Tracv  r.  Tracy,  840,"  859 

Trafford  v.  Boehm,  1008,  1013 
V.  Trafford,  38,  39 

Travers  r.  Travers,  617 

Tregonwell  r.  Sydenham,    1017,    1049, 
1050 

Trench  v.  Harrison,  249 

Trestrail  r.  Mason,  770 

Trethowan,  In  re,  787 

Trevelyan  v.  Charter,   189,    200,   210, 
212 

Trevor,  Ex  parte,  308 

r.  Trevor,  6,  12,  21,  33,  399 

Trimmer  r.  Bayne,  359,  362,  386 

TriqueffJ.  Thornton,  1007 

Trollope  r.  Poutledge,  449 

Trott  V.  Buchanan,  744,  Ixxvii 

Troughton  r.  Troughton,  721 

Troutbeck  v.  Boughev,  549,  564 

Trowell  v.  Sheuton,  335,  336,  337,  346, 
894 

Trower  r.  Kaiightley,  972,  1006 

Trumper  r.  Trumper,  56,  71 

Trye  v.  Sullivan.  Ixxiv 

Tiibb's  Estates,  Re,  521 

Tucker,  In  re,  Ixxv 

V.  Burrow,  255 
r.  Kaycss,  1050 

Tucker  r.  Tucker,  451 

Tudor  r.  Anson,  272,  275 

Tuer  r.  Turner,  1006 

TugTuan   r.  Hopkins,  .")95,  596 

Tuiwell.  f)i  re,  1025 

Tulk  V.  Moxhay,  651 


Ivi 


TABLE    OF    CASES. 


[The  paging  refers 
Tnllet  V.  Tullet,  1019 
Tullett  r.    Armstrong,   612,   G13,  615^ 

1179 
Tullit  V.  Tullit,  1019 
TurnbuU  v.  Forman,  Ixxvii 

V.  Garden,  194 
Turner,  Ex  parte,  135,  1 36,  799 
Turner's  Estate,  In  re,  350 

Settled  Estates,  In  re,  Isxv 
Turner);.  Att.-Gen.,  904,  905 
V.  Caultield.  592 
V.  Collins,  694 
V.  Letts,  788,  9G6 
V.  Marriott,  392 
V.  Richmond,  703,  717 
f.  Sargent,  34,  36,  46,  48 
V.  Trelawny,  198 
V.  AVright,  860 
Turner's  (Sir  Edward)  case,  512 
Turnley  v.  Hooper,  338 
Turquand,  Ex  parte;  lure,  Fothergiil, 

136 
Tussaud  V.  Tussaud,  618 
Tweddell  v.  Tweddell,  682,  756,  757 
Tweedale's  Settlement,  Re,  526 
T\vee(lie&  Miles,  In  re,  993 
Tweedy,  Ex  parte,  787 

In  re,  960 
Twistleton   v.   Griffith.  630,  633,   646, 

653, 659,  672,  677,  693 
Twort  V.  Twort,  871,  872 
Twyne's  case,  351 
Tvl'den's  Trust,  In  re,  1009 
Tylee  v.  Webb,  775 
Tyler  v.  Lake,  550 

V.  Yates,  676,  679,  687,  689,  691, 
692.  693, 1098 
Tynte  v.  Hodge,  682,  686 
Tvrcounel    (Lord)   v.  Ancaster  (Duke 

V),  441,  444 
Tyrell  v.  Hope,  546 
Tyrrell  v.  Bank  of  London,  202 
Tyssen  v.  Benyon,  432 


Udal  v.  Udal,  812,  817,  837,  838,  852 

Underhill  v.  Horwood,  121 

Underwood,  In  re,  999 

Unett  V.  Wilkes,  419 

Ungley  v.  Ungley,  894 

Union  Bank  of  London  v.  Lenanton, 

932 
Union  Bank  of  Manchester,  Ex  jjarie, 

776 
Unity   Joint  Stock   Mutual   Banking 

Association  v.  King,  775,  788 
Unsworth,  Be,  678 
Unsworth's  Trusts,  In  re,  203 
Upton  V.  Ba.sset,  334 


to  the  [*]  pages.] 
Usborn  r.  Usborn,  860 
Usticke  V.  Peters,  411,  412 
Uvedale  v.  Uvedale,  817,  872 

Van  v.  Barnett,  989,  1004,  1010,  1047 
Vance  v.  Vance,  258 
Vandeleur  v.  Vandeleur,  757 
Vandenberg  v.  Palmer,  305,  302 
Vanderzee  v.  Aclom,  465,  467 
r.  Willis,  722,  792 
Vane  v.  Barnard  (Lord),  10,  816,  863 
V.  Dungannon   (Lordj,  426,  433, 

448 
V.  Fletcher,  288 
(Earl  of)  V.  Rigden,  108 
V.  Vane,  213 
Vansittart  v.  Vansittart,  563,  943 
Varden,    Seth     Sam     v.     Luckpatby 

Royjee  Lallah,  778 
Vardon's  Trusts  In  re,  408,  434,  Ixxiv 
Vaughan  v.  Buck,  514,  519,  532 
V.  Burslem,  27,  28.  38 
V.  Vanderstegen,  569 
V.  Walker,  584 
Vaughton  v.  Noble,  177 
Vavasour  (a  lunatic).  In  re,  Ixxix 
Veal  v.  Veal,  527,  1083,  10-4 
Venables  v.  Morris,  31 
Veuour's  Settled  Estates,  //;  re,  983 
Vernon  v.  Egremont   (Lord),  287 

V.  Vernon,  277,  lt)19 
Verulam  (Earl  of)  v.  Batlmrst,  30 
Vickers  v.  Cowell,  223 
r.  Vickers,  947 
Villarealr.  Galway  (Lord),  421 
Villers  v.  Beaumont,  353 
Vincent  v.  Spicer,  851 
Viner  t;.  Vaughan,  855,  856 
Viret  V.  Viret,  895 
Vivers  v.  Tuck,  940 
Von  AVitzleben  v.  Siltzer,  50 
Voss,  In  re,  555.  556 
Voyle  V.  Hughes,  321 


Waddell  v.  Blockley,  195 

V.  Toleman,  7!;9,  805 
Wade,  In  re,  1017 

V.  Coope,  127 

V.  Paget,  272,  278,  449 

V.  Wilson,  802 
Wadham  v.  Rigg,  249 
Wagstaffe  v.  Smith,  546,  562,  610 
W^iinford  v.  Heyl,  574,  576 
Wainman  v.  Field,  40 
Wainwright  v.  Bendlowes,    726,  727 

V.  Hardisty,  563 
Waitei'.  Webb,  988 


TABLE    OF    CASES. 


Ivii 


•  [The  piiKiiig  refers 

Wake,  Ex  parte,  7!)9 

V.  Wiike,  421,  42i),  4:51 
Wakefield  v.  Gil)l)on   347,  (jwii 

V.  lilanelly  Railway  &  Dock 
Co.   949 
Waldo  V.  Waldo,  877 
WaldiDii  V.  Sloper,  79G 
Wallbrd  c.  Gray,  895 
Walliampton  Estate,  In  re,  336 
Walker,  E.r  parte,  985 

(Anne),  /"  re,  528,  530 

V.  Armstrong,  50 

V.  Bratliord  Old  Bank,  324 

V.  Denne,  981,  982,  989,  1007, 

1045,  1103 
V.  Drury,  520,  523 
V.  Eastern  Counties  Railway 

Co.,  984 
V.  Flamstead,  84 
V.  Hardwick,  740 
V.  JaeksDn,  720,  729,  737 
V.  Laxtou,  749 
V.  Mottrani,  950,  951 
V.  Preswiek,    123,    359,    367, 

387 
V.  Smallwood,  89,  94 
V.  Walker,  420,  887,  897 
V.  Ware,  &c..    Railway    Co., 
370,  377 
Wall  V.  Colsliead,  992,  1045,  1046 
V.  Thurborne,  465 
V.  Tonilinson,  535 
r.  Wall.  433 
Wallace  r.  Auldjo,  518 

r.  Greenwood,  1024 
r.  Wallace,  682 
Waller  v.  Dalt,  630,  080 
Walley  v  Wallev,  54,  61,  62,  63 
Wallgrave  v.  Tebbs,  902,  905 
Wallinger  v.  Wallinger,  417 
Wallwyu  r.  Coutts,  337 
Wahuesley  v.  Booth,  644 
Walpole  V.  Conway,  405 

(Lord)  r.'  Orlbrd   (Lord),  891 
Walroud  v.  Rossi vn.  979,  1006 
V.  Walrond,  327,  942 
Walsh  V.  Studdart,  1086 
V.  Trevannion,  50 
V.  Wason,  522 
Walsham  r.  Stainton,  189 
Walter  v.  Bartlett,  922 

V.  Hodge,  313,  545,  1078 
V.  IMaunde,  993 
Waltess  V.  ISTorgan,  948 

V.  Nortliein  Coal  Mining  Co., 
798 
Walwyu  r.  Coutts,  303,  308 
Warburton  v.  Warburton,  423 
Ward  and  Henry's  case,  922 


to  the  [•]  pnge(<.  ] 

Ward  /;.  Arch,  992,  997 

V.  Audland,  301,  315,  31:).  320. 

334,  1206 
V.  Baugh,  406,  432 
V.  Beck,  931 
r.  Booth,  275,  288 
V.  National  Bank  of  New    Zea- 
land, 120 
-v.  Turner,  1058,  1077,  1078 
V.  Ward,  106,  228,  521 
V.  Yates,  521 
Warden  v.  Jones,  346.  8<J4 
Wardle  v.  Carter,  684,  686 
V.  CI  ax  ton,  546 
V.  Oakley,  781 
Ware  v.  Gardner,  344 

V.  Grand  .Junction  Waterworks, 

Co.,  951 
V.  Horwood.  120,  122 
V.  Polhill,  1018,   1019 
Waring  v.  Ward,  747,  755,  756,  757 
Warne  ?•.  Routledge,  566 
Warner,  E.c  parte,  re  Cooke,  775 
Warnock's  Estate,  In  re,  132 
Warr  v.  Warr,  459 
Warren's  Trusts,  In  re,  428,  429 
Warren  v.  Rudall,  417 
Warriner  v.  Rogers,  :>11,  1081 
Warwick  v.  Warwick,  51 
Warwicker  v.  Bretnall,  1026 
Waterer  r.  Waterer,  231 
Waterfall  v.  Penistone,  786 
Waters  v.  Bailey,  56 

V.  Groom.  187,  188,  206 
V.  Taylor^  196 
V.  Thorn,  200,  214 
Watkins  v.  Cheek,  91 

V.  Flanagan,  135 

V.  Steevens,  334 

V.  Watkins,  532 

Watkyns  r.  Watkyns,  489 

Watson's  (Miss)  case,  608 

Trust,  Be,  1009 

Watson  V.  Arundel,  1053 

V.  Brickwood,  739,  743 
V.  Cox,  956 
V.  Hayes,  1042 
V.  Knight,  307 
V.  Marshall,  523,  525 
V.  Parker,  333,  334,  342 
r.  Ro.se,  379,  393 
V.  Toone,  176,  197,  209 
Watt  V.  Creke,  455 
r.  Grove,  189 
r.  Watt,  275 
Watts  V.  lUillas,  275,  328 
r.  Kancie,  107 
V.  Porter,  711 
V.  Watts,  912,  913,  985 


Iviii 


TABLE    OF    CASES. 


[The  paging  refers 
Waugh,  In  re,  572 
Waugh  V.  Waddell,  572 

V.  "Wren,  127 
^Yav's  Trusts,  lie,  321,  323,  326 
Weale  i:  Olive,  315 
Weatherbv  c.  St.  Giorgio,  81 
Webb  t'.  De  Beanvoisin,  750 
V.  Jones,  745 
V.  Lugar,  61 
V.  Rorke,  188 

V.  Shaftesbury  (Earl  of)  409 
Webster  v.  British  Empire  Mutual  Life 
Ass.  Co.,  804 
V.  Cook,  679,  684.  690,  691 
V.  Milford,  406 
V.  Rickards,  Ixxv 
V.  Webster,  896 
Wedderburn  v.  Wedderburn,  197 
Weeding  v.  Weeding,  1003 
Weir  ('.  Chamley,  444 
Welbeck  Park,  case  of,  810 
Welbourn  (Rector  of),  In  re,  983 
Welby  V.  Rockcliffe,  749 

V.  Welby,  406.  410,  412,  417 
Welchman,  Be,  520 

V.  Coventry  Union  Bank, 
785,  793 
Weld  (a  lunatic).  Lire,  Ixxix 

r.  Tew,  1015 
Weldou  V.  Bradshaw,  748 

V.  De  Bathe,  599,  605 
V.  Neale,  585 
V.  Riviere,  588,  Ixxvi 
V.  Winslow,  588 
Wellesley  v.  Mornington  (Earl  of),  446, 
457 
V.  Wellesley, 866, 867, 874, 943 
Wellington  v.  Macintosh,  944 
Wells  v.   Chelmsford  Local    Board    of 
Health,  912 
V.  Price,  528 
V.  Row,  741 
V.  Stradling,  887 
Wei  man  v.  Wei  man,  50,  52 
Wentworth  v.  Lloyd.  190,  211 
Wesley  v.  Walker,  956,  960 
West  V.  Berney,  449,  462 

r.  Errissey,  6,  18,  23,  51,  403 
V.  Ray,  281 
V.  West,  315 

(Sackville)  v.  Holmesdale  (Vi.s- 
count),  20,  21,  24,  28,  34,  39, 
44,  45,  47,  48 
of  England  &  South  Wales  Dis- 
trict Bank  v.  March,  102 
Jewel   Tin    Mining   Co.,  In  re; 

Weston's  case,  183 
V.  London  Commercial  Bank  v.  Re- 
liance Perm.  Build.  Soc.  704 


to  the  [*]  pages.] 

Western   of  Canada   Oil    Lands    and 

Works  Co.,  In  re,  184 
Westhead  v.  Riley,  712 
Westmeath  r.  Salisbury,  942 

(Earl    of)    V.    Westmeath 
(Counte-ss  of),  942,  943 
Weston's  case,  183,  268 
Westzinthus,  In  re,  128 
Wethered  v.  Wethered,  685 
Wetherell,  Ex  parte,  775,  783 

V.  Wetherell,  420,  424 
Whaley  v.  Baguel,  886 

Bridge  Calico  Printing  Co. 
V.  Green,  186 
Wharton,  //(.  re,  982,  1005,  1016 

V.  May,  685,  693 
Whateley  v.  Kemp,  24 
Wheate  v.  Hall,  45 

Wheatley,  In  re;  Smith  v.  Spence,  408, 
434 
V.  Purr,  309 

V.    W^estminister     Brymbo 
Coal    and   Coke  Co., 
933 
Wheeler  v.  Carvl,  535 

V.  D'Esterre,  887,  901 
V.  Smith,  253 
Wheelright  v.  Walker,  466 
Wheldale  v.  Partridge,  975,  981,  989, 

991,  1009 
Whelpdale  v.  Cookson,  198,  214 
Wherly,  Re,  799,  805 
Whichcote  v.  Branston,  679 

r.  Lawrence,  176,  211,  212 
Whidborne  v.  Ecclesiastical    Commis- 
sioners, 180 
Whieldon  v.  Spode,  740,  748 
W^histler  v.  Newman,  567 

r.  Webster,  391.  406,  410.  426 
V.  Whistler,  429 
Whitbread,  Ex  parte,  779.  789,  791 
V.  Brockhurst,  886,  887 
V.  Jordon,  775,  783 
V.  Smith,  338 
Whitchurch  r.  Bevis,  886,  897,  898 
Whitcomb  v.  Minchin,  177,  189 
W^hite  V.  Anderson,  50 
V.  Bohj,  941,  959 
V.  Briggfe,  35,  47 
V.  Cann,  861 
V.  Carter,  29 
r.  Cohen,  602 
V.  Herrick,  524,  527 
V.  Hussey,  334 
V.  St.  Barbe,  449 
V.  Simmons,  799,  800,  805 
f.  Stringer,  340 
v.  Thornborough,  12 
V.  Wakefield,  384,  387 


TABLE   OF   CASES. 


lix 


[The  paging  refers 
White  V.  Whito,  .52,  63,  427,  740 
AVliitchaven  (Bank  of)  v.  Dawson,  128 
Whitfield  (Incumbent  of),  Jn  re,  ynij 
(;.  JJevvit,  M3,  814,  8l«J,  836, 

843,  8.32 
V.  Fausset,  G47,  G54 
Wliiting  ('.  P,nrkc,  120 
Wliitiitore  r.  Tiiniuand,  307 
Whitley  c.  Whitley,  410,  411,  431 
Whittaker,  In  re;  Whittaker  i;.  Whit- 
taker,  313,  545 
V.  Jlowe,  942 
V.  Whittaker,  986 
Whiltem  r.  Sawyer,  518 
Whittle  r.  Kenning,  433,  527 
Whitty's  Trust,  Ih,  20,  989 
Whit  wick  ?,'.  Jermin,  976 
Wliit  worth  V.  Gaiigain,  711,  792 
AVich  r.  Parker,  M.IO 
Wicherley's  ease,  450 
Wickens  v.  Townsend,  202 
Wicks  V.  Hunt,  954 
Wigg  ('.  Wigg,  357,  360 
Wigglesworth  r.  Wigglesworth.  224 
Wight's  Mortgage  Deed,  Jn  re,  784,  797 

Devised  Estate,  In  re,  982 
Wight  V.  l.eigh,  20 
Wight  wick  /•.  Lord.  993 
AVigsell  V.  School  for  Indigent  IJlind, 939 
Wilcocks  V.  Hannyngton,  310,  563 
Wilcox  I'.  Gore,  621 
Wild's  case,  4,  6,  8,  23 
Wild  r.  Milne,  197 
Wilder  v.  Pigott,  433.  434.  Ixxiv 
Wilding  V  Richards,  303,  30 1,  306,  308 
Wilkes  V.  Bodington,  718 
V.  Holmes,  272 
I'.  Wilkes,  942,  943 
Wilkie  V.  Holme.  279 
Wilkins  v.  Fry,  794 
Wilkinson's  Mortgage  Estates,  In  re, 

2S3 
Wilkinson  r.'Charlesworth,  514 
•     v.  Clements,  934 
V.  Dent,  411,  414,  415 
V.  Hartley,  95 
r.  Eloyd,  927 
V.  Nelson,  50 
V.  Schneider,  525 
Wilks  ?'.  Davis,  944,  947 
Willats  r.  Busby,  335 

V.  Cay,  524 
Willesford  r.'Watson,  945,  946,  247 
Willeter  i'.  Dobie,  595 
Williams,  E.v  parte,  329,  800 
In  re,  777,  792 
V.  Aylesbury  and  Bucking- 
liam  Railway  Co.,  377, 
983 


to  the  [•]  pages.] 

Williams  v.  Bolton  (Duke  of),  574,  876, 
S78 
V.  Callow,  531,  533 
V.  Carter,  44,  45 
V.  Day,  9 

V.  Evans,  785,  889,  890 
V.  Hughes,  749 
V.  Elandair  (Bp.  of),  744 
V.  M'Namara,  865 
V.  Massv,  111 
I'.  Mavne,  433,  434 
V.  Medlicot,  781,  788 
V.  Mercier,  590,  604 
V.  Owen,  127,  897 
V.  Snowdon,  959 
V.  Teale,  44 
V.  Thomas,  249 
V.  Tompson,  4 
V.  Trye,  195 
V.  Walker,  895 
V.   Williams,   255,  260,  263, 
264,  6^3,  858,  867,  888, 
893,  950,  1014 
William's  Estate,  In  re,  721 
Williamson  v.  Codrington,  334 
V.  Curtis,  83 
V.  Gordon,  802 
V.  The  Advocate  General, 
994 
Willis  V.  Kymer,  551,  562 

V.  Willis,  247 
Willock  V.  Noble,  562 
Willoughby  v.  Brideoak,  683 

V.  Middleton,  416,  433 
V.  Willoughby,  703,  713 
Willox  V.  Rhodes,  749 
Wills  V.  Bourne,  746 
V.  Sayers,  550 
r.  Stradling,  887,  888,  889 
Will  way's  Trusts,  Be,  284 
Wilmot  V.  Pike,  707,  718 
Wilson,  Ex  parte,  139 
Wilson  V.  Balfour,  783 
r.  Beddard,  981 
•  V.  Church,  392 
V.  Coles,  992,  1045 
V.  Furncss  Railway  Co.,    936, 

937 
V.  Hart.  951 

V.  Keating,  3S4,  391,  921 
V.  Leslie,  110 
V.  Major,  1042,  1053 
r.  Moore,  110 

V.  Northampton  and  Bambury 
Junction  Railway  Co., 936, 
938,  955 
V.  Piggott,  277,  465,  466 
V.  Sewell,  205 
r.  Thorubury,  431 


Ix 


Wilson  V.  Townshencl,  409,  433 

V.    West    Hartlepool    Kailway 

Co.,  887,  892,  901 
V.    Wilson,   50,   339,   418,   611, 
94"2   943 
Wilton  r.  Hill,  '619 
Winch  r.  James,  528 
Winchelsea  (Earl  ofj  v.  Norcliffe,1018, 

1019 
Winchester  (Bishop  of)  r.  Knight,  871 
Winchester    (Bishop  of)  v.  Mid-Hants 

Railway  Co.,  376,  377 
Windham  r.  Richardson,  718 
W^ing  V.  Tottenham,  &c.,  Railway  Co., 

377 
Wlnslow  V.  Tighe,  61,  63 
Winter  v.  Anson  (Lord),  376,  379,  387, 
775 
V.  Winter,  301 
Wintour  v.  Clifton,  405,  409,  411,  412, 

431 
Wise  V.  Piper,  45,  46 
Wiseman  v.  Beake,  634,  655,  674,  676. 
678 
V.  Carbouell,  801 
Wither  v.  Dean  and  Chapter  of  Win- 
chester, 858 
Withers  v.  Withers,  244,  245 
Withy  V.  Cottle,  919,  921 
Witt  V.  Amis,  1083,  1084 

V.  Corcoran,  945 
Witter  V.  AVitter,  1018 
Witts  V.  Dawkins,  610 
W^olfe  (Birch)  v.  Wolfe,  876 
W^ollaston  v.  King,  417,  428 

V.  Tribe,  331 
WoUen  V.  Tanner,  426 
Wolterbeek  v,  Barrow,  50 
Wolverhampton,  e*cc.,  Co.  v.  Marston, 

347 
Wombwell  v.  Belasyse,  865,  868 
Wood,  E.c  parte,  136 
Wood's  Estate,  Be,  66,  67 
W^jod's  Settled  Estate,  Ee,  1009 
Wood  V.  Abrey,  684,  693 
V.  Downes,  214 
r.  Gaynon,  861 
V.  Griffith,  948 
V.  Harm  an,  83 
V.  Midgley,  898 
V.  Rowel iffe,  920,  -964 
V.  Skelton,  1046 
V.  Wood,  (iOO 
Woodford  v.  Charnley,  301,  315 
Wood  head  v.  Turner,  748 
Woodhouse  v.  Meredith,  189 
V.  Shepley,  644 
r.  Walker,  861 
Woodmau  v.  Morrell,  264 


TABLE    OF   CASES. 


[The  paging  refers  to  the  [*]  pages.] 


Woodmeeston  v.  W^alke,  612,  613 
Woodroflfe  v.  Allen,  679,  680 
V.  Johnston,  310 
Woods  V.  Huntingford,  755,  756,  757 

V.  Hyde,  1003 
Woodward  v.  Pratt,  525 

V.  W^oodward,  583 
Woof  V.  Barron,  801 
Woolam  V.  Hearn,  898,  900 
Woolhouse  (a  lunatic),  In  re,  Ixxix 
Woolmore  v.   Burrows,  33,  45,  47 
Woolridge  r.  Woolridge,  429 
Woolstencroft    v.    Woolstencroft,   763, 

704 
W^orcester  City  &  County  Banking  Co. 

V.  Blick,  250 
Wordsworth  v.  Dayrell,  526,  581 
Worman,  In  the  goods  of,  594 
AVormsley's  Estate,  In  re,  762 
Worrall  v.  Jacob.  338 

V.  Marlar,  488,  4S9,  490,  491, 
492,  519 
Wortham  r.  Pemberton,  513 
Worthington  r.  Curtis,  259,  264 
V.  Morgan,  387 
V.  Wiginton,  431 
Wortley  v.  Birkhead,  701,  703,  717 
Wray  v.  Steele,  244 
Wray's  Trusts,  In  re,  535 
Wren  v.  Kirton,  177 
Wright,  Ex  parte,  785 

V.  Atkyns,  872 

V.  Bell,  915,  918 

V.  Chard,  572,  574,  604 

V.  Goff,  449.  455 

V.  Hunter,  121 

V.  King,  523 

V.  Morley,  1.35,  532 

V.  Pearson,  19 

V.  Pitt,  798,  871 

V.  Rose,  999 

V.  Row,  1050 

V.  Rutter,  488,  524,  525 

V.  Stanlield.  797 

V.  Vanderplank,  212,  680,  694 

V.  Wright,  615,  616,  1045 
Wrightson  v.  Macaulay,  979,  992 
Wrigley  r.  Swainson,  483 

V.  Sykes,  100,  101 
Wrout  V.  Dawes,  376,  384 
Wyatt  V.  Cook.  693 
Wvld's  case,  A,  6,  8,  23 
Wyld  V.  Radford,  784,  791 
Wyllie  V.  Pollen,  713 
Wynn  Hall  Coal  Co.,  In  re,  776,  791 
W\ynn's  Devised  Estates,  Re,  283,  284 
Wynne  v.  Price,  922 
Wythe  V.  Henniker,  362,  386,  745,  752 
Wythes  v.  Lee,  392,  393,  394 


I 


TABLE  OF  CASES. 


Ixi 


[The  paging  refers  to  the  [*]  pages.  ] 


Yai.I.OP,  Ex  parte,  245,  246 
Yates  V.  I'hotliplace,  459 

V.  Yati's,  !}!)3 
Yelverton  v.   I^.atli,  870 
Yem  V.  Edwards,  57 
Yonye  V.  Fnrze,  75o,  769 

V.  Reynell,  126,  130 
York  Buildings  Company  '"■  Macken- 
zie, 189,  209,  210,  212 
Union    Banking  Co.  v.   Artley, 

801 
V.  Eaton,  222 


Young,  Lire;  Trye  v.  Sullivan,  l.\xiv 

Ex  parte,  120 

r.  Macintosh,  24,  30,  .36 

V.  Peachy,  252,  897 

V.  Waterpark,  466 

V.  Young,  702,  7:!9,  751 
Ystalyfera  Iron  Co.  v.  Neath  and  Bre- 
con Railway  Co.,  985 


ZoACH  V.  Lloyd, 
Zouch  d.  Forse  v. 


1019 
Forse,  245 


TABLE  OP  STATUES  CITED. 


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PAGE 

52  Hen.  III.  c.  29  (Stat,  of  Marlebridge— Real  Actions)  ....      839,  840, h54 

6  Edw.  I.  c.  6  (Stat,  of  Gloucester— Real  Actions) 817,  8W,  8.54 

13  Edw.  I.  c.  1  (De  Bonis)        4.  8,  647 

4  Hen.  VII.  c  .  24   (Stat,  of  Fines) 849 

11  Hen.  VII.  c.  8  (Usury) 629,   665 

c.  20  (Jointures)        24 

27  Hen.  VIII.  c.  10  (Stat,  of  Uses) 433,  827 

s.  10 433 

32  Hen.  VIII.  c.  1  (Stat,  of  Wills) 418 

c.  28  (Lease)      287 

37  Hen.  VIII.  c.  9  (Usury)  .    .■ 640,641,649,656,658 

13  Eliz.  c.  5  (Fraudulent  Conveyance)  267,  326,  340,  342,  347,  348,  349,  350, 

351,  792,  1126,  1211,  1213,  1214 

s.  6 342 

s.  47 • 351 

27  Eliz.  c.  4  (Fraudulent  Conveyance)  268,  326,   330,   334,  .335,   .3.39.   340,  342, 

792,  1126,  1211,  1214 

s.  3 .350 

29  Eliz.  c.  5  (Voluntary  Settlement) 342 

43  Eliz.  c.  4  (Charitable  Uses) 273,  274 

21  Jac.  I.  c.  16  (Limitations) 

s.  7 , Ixxvi 

c.  17  (Usury) '  .    .    .    .      628,  656 

12  Car.  II.  c.  13  (Usury) 656 

15  Car.  11.  c.  17  (Bedford  Level) 366 

22  &  23  Car.  II.  c.  10  (Distributions) 424,  425 

29  Car.  II.  c.  3  (Stat,  of  Frauds)  247,  248,  249,  254,  255,  267,  278,  287,  774.  884, 

885,  886,  891,  892,  902,  903,  912,  1062,  1064,  1065,  1121,  1158,  1181,  1189 

29  Car.  II.  c.  3,  s.  4 773 

s.  7 309,  c45 

s.  8 247,  249,  267 

s.  13 • 245 

ss.  19-22 1075 

30  Car.  IL  c.  7  (Administration  of  Estates) 846 

3  W.  &  M.  c.  14  (Fraudulent  Devises) 74 

s.  7 105 

4  &  5  W.  &  M.  c.  24  (Administration  of  Estates') 

s.  12 ; 846 

10  &  11  Will.  III.  c.  16  (Posthumous  Child;  Waste)    .    . 817 

5  Anne,  c.  3  (Duke  of  Marlborough's  Act) 869 

6  Anne,  c.  2  (Irish  Registry) 64 

7  Anne,  c.  16  (Wagers) 642 

c.  20  (Midd.  Registry) 784,  797 

12  Anne,  stat.  2.  c.  16  ^Usury) 640,649,  656 

7  Geo.  II.  c.  8  (Stock  Jobbing) 642 

9  Geo.  II.  c.  36  (Mortmain)   274,   385,   903,   904,  988,   1035,    1042,  1048,  1050, 

1051,  1162,  1163,  1164,  1203 

10  Geo.  II.  c.  8  (Stock  Jobbing)         642 

(Ixii) 


TABLE. OF  STATUTES  CITED.  Ixiii 

[The  paging  refers  to  the  [*]  pages.] 

PACE 

14  Geo.  II.  c.  20  (Common  Recoveries) 

s.  9 24.'j 

33  Geo.  II.  c.  14,  Ir.  (Deposit  of  Deeds  by  Banker) 793 

14  Geo.  III.  c.  48  (Life  Insurance)      265 

2f)  Geo.  III.  c.  60  (Ship  Registry) O.'iO 

34  Geo.  III.  c.  68  (Ship  Registry) 930 

36  Geo,  III.  c.  52  (Legacy  Duty) 43.". 

s.  7 1087 

39  &  40  Geo.  IIL  c.  56  (Entailed  E.states) 1005 

c.  98  (Thellussou  Act) 1042,1043,1162 

41  Geo.  III.  c.  109  (Inclosure) 

s.  2 207 

45  Gdo.  IIL  c.  28  (Legacy  Duty) 435 

47Geo.  III.  c.  74  (Debtsof  Trader.s)      88 

49  Geo.  III.  c.  121  (Bankruptcy) 

s.  8 135 

53  Geo.  III.  c.  141  (Inrolment  of  Grants  of  Annuities) 782 

55  Geo.  IIL  c.  184  (Stamps) • 994 

c.  192  (Wil) ■ 271,  419 

3  Geo.  IV.  c.  92  (Memorials  of  Grant^  of  Annuities) 782 

4  Geo.  IV.  c.  41  (Ship  Registry) 930 

6  Geo.  IV.  c.  16  (Bankruptcy) 

s.  .")2         135,  140 

c.  110  (Sliip  Registry) 930 

7  Geo.  IV.  c.  45  (Entailed  Estates) 1005 

c.  57  (Insolvent  Debtor-s) 342,1211 

9  Geo.  IV.  c.  14  (Parol  Contract) 894 

c.  92  (Savings  Bank) 246,1160 

11  Geo.  IV.  &  1  Will.  IV.  c.  20  (Wills  of  Soldiers,  &e.) 1075 

e.  46  (Illusory  Appointments)  465, 467,  468,  469,  1149 

c.  47  (Fraudulent  Devise) 74 

s.  10 802 

s.  11 802 

c.  65  (Estate  of  Lunatic) 1010 

1  Will.  IV.  c.  46  (Illusory  Appointments) 465,  467,  468,  469,  1149 

c.  47  (Fraudulent  Devise) 88 

3  &  4  Will.  IV.  c.  27  (Limitations) 64,  391,  879,  1219 

ss.  2,  3,  4,  5 880 

s.  36 859 

s.  42 716,  722 

c.  42  (Administration  of  Estate) 

s.  2 846 

s.  3 716,  722 

c.  55  (Ship  Registry) 930 

c.  74  (Fines  and  Recoveries),  24,  213,  564,  565.  566,  895,  1005, 

1120,  1170 

s.  16 24 

s.  24 565 

s.  34 565 

s.  40 1005,  Ixxiii 

s.  47 Ixxiii 

s.  71 .  1005,  1008 

s.  77 ■ 1005 

s.  79 566 

s.  84 566 

c.  104  (Simple  Contract  Debt)    .    .    .88, 105,  386,  426,  721,  976 

0.105  (Dower) 420,425,485,977 

s.  4 425 


Ixiv  TABLE  OF  STATUTES  CITED. 

[The  paging  refers  to  the  [•]  pages.] 

PAGE 

3  &  4  Will.  IV.  c.  105  s.  fi 425 

s.  7 425 

s.  9 425 

s.  10 425 

c.  106  (Inheritance) 417 

4  &  5  Will.  iV.c.  92  (Abolition  of  Fines  and  Recoveries,  Ir.) 564 

5  &  6  Will.  IV.  c.  54  (Marriage) 256 

6  &  7  Will.  IV.  c.  32  (Building  Society) 778 

1  Vict.  c.  26  (AVills   Act),  271,   278,. 279,   290,  418,  902,   977,  1009,  1018,  1020, 

1045,  1054,  1056,  1088,  1102,  1103,  1112,  1113,  1115,  1162,  1163 

s.  2 1075 

ss.  3,  4,  5 ,271 

s.  6 245 

s.  7 418 

s.  9         279,  290 

s.  10 .- 279,  290 

ss.  11,  12 1075 

■      s.  24 419,  977,  Ixxv 

s.  33 1056 

1  &  2  Vict.  c.  42  (Crown  Lands) 57 

c.  110  (Judgments),  342,  348,  584,  708,  711,  715,  720,  792,  1194, 

1195,  1213 

s.  11   .... 584,  709 

s.  12 342 

7  tSi  8  Vict.  c.  76  (Transfer  of  Real  Property) 78 

s.  8 .      33 

s.  10 78 

c.  97  (Charitable  Donations  and  Bequests,  Ireland)   .    .    1042,  1162 

c.  110  (Joint  Stock  Companies) 187 

s.  29 186,  187 

8  Vict.  c.  16  (Companies  Clauses.  1845) 

ss.  14-20 315 

8  &  9  Vict.  c.  18  (Lands  Clauses,  1845)     .  378,  912,  982,  1110,  1121,  1181,  1202 

s.  7 564,  1006 

s.  8 207 

s.  9       207,  Ixxviii 

s.  10 378 

s.  11      378 

s.  69      V    .  1009 

s.  73      57 

s.  85      .    .  " 376,  378 

c.  20  (Railway  Clauses,  1845) 

s.  76      952 

s.  92 952 

c.  76  (Legacy  Duty) 1087 

s.  4 1088 

c.  89  (Ship  Registry) 

s.  34      930,  932 

s.  37      930 

c.  106  (Law  of  Property  Amendment  Act) 33,  78 

s.  8 853 

c.  112  (Satisfied  Terms) 718 

c.  118  (Commons  Inclosure) 

s.  219 207,  Ixxviii 

10  &  11  Vict.  c.  96  (Trustee  Relief) 52,  95 

12  &  13  Vict.  c.  26  (Lease) 288 

s.  3 288 

s.  7 288 


TABLE  OF  STATUTES  CITED.  Ixv 

[The  paging  refers  to  the  [•]  pages.  ] 

PAGE 

12  &  13  Vict.  c.  20  s.  9 288 

c.  74  (Trustee  Relief) 95 

c.  106  (Bankruptcy,  1849) .198 

.s.  12(i 351 

s.  173 135 

<■.  110  (Lease) 288 

l:?  &  14  Vict.  c.  17  (Lease) ...  288 

l:!.^' 14  Vict.  c.  17,  s.  2    .    .    .    .    : 289 

s.  4 288 

c.  60  (Trustee  Act,  1850) 803,985 

s.  30 P60 

c.  97  (Stamps) 989 

14  &  15  Vict.  c.  99  (Law  of  Evidence  Amendment) 583,1173 

15  Jt  10  Vict.  c.  55  (Trustee  Act,  1852) 

s.  1 803 

c.  86  (Mortgage) 

s.  48 800 

16  &  17  Vict.  c.  51  (Succession  Duty) 436,997,1107 

^  o  436 

s!  29'  .■.'.'  ^  ■  ' 995 

s.  30 982 

c.  70  (Lunacy  Act,  1853) 1016,  1M7,  1108,  Ixxix 

s.  119. 1016,  1017 

s   104  1016.  Ixxix 

s!  131   ■.■.■■.■'    ■ •  1016 

s  130  1016 

s.  135   ;    ;    '.    ■. 1016,  1017 

c.  83  (Evidence) 583 

17  &  18  Vict.  c.  36  (Bills  of  Sale,  1854)      778.  786,  787,  788,  11,25 

c.  90  (Usury) 640,  656,  664,  686,  782 

c.  104  (Merchant  Shipping  Act,  1854) 246,930.931,932 

s.  3 931 

s.  37  (2) 246 

c.  113  (Locke  King's  Act— Mortgage),  392,  750,  751,  761,  762, 
763,  764,  765,  769,  770,  771,  986, 1104, 1141, 1143, 1144,  1204 

s.  1  , 762,  765,  769 

g  2  '765 

c.  125  (Common  Law  Procedure,  1854),  332,  944,  960,  1099,  1186, 

1188 

s.  11 945 

s   17  950 

s.'78     ."    .■    ■ 966 

s.  70      859 

H  &  19  Vict.  c.  15  (Judgments! 386 

V  12 ■ "82 

c.  43  (infants'  Settlements)      483,  528 

l!)  &  20  Vict.  c.  97  (Mercantile  Law  Amendment,  1856)    .    .    .      133,  134,  1157 

s.  5  134 

c.  120  (Leases  and  Sales  of  Settled  Estates),  48,  95,  283,  878,  893, 

982,  1009,  1109,  1154 
s   13  283 

ss.  23-25 :;:;;;;; 1023 

s.  35 288 

20  &  21  Vict.  c.   57   (Malins  Act— Married  Women),  433,  434,   515,   527,  528, 

1129,  1130,  1132 

c.  60  (Bankruptcy,  Ireland,  1857) 798 

5   WHITE  ON   EQUITY.  " 


Ixvi  TABLE  OF  STATUTES  CITED. 

[The  paging  refers  to  the  [*]  pages.] 

PAGE 

20  &  21  Vict.  c.  85  (Divorce  and  Matrimonial  Causes),  521,  543,  5.52,  1166, 1167. 

1177 

s.  2 596 

s.  21 553,  603 

s.  25 521,  553.  Ixxv 

s.  26 554,  603 

s.  45 566 

21  &  22  Vict.  c.  27  (Lord  Cairns'   Act— Chancery  Amendment),  934,  953,  955, 

956,  937,  959,  1188,  1189 

s.  2 93 

ss.  2-6 : 95 

c.  77  (Leases  and  Sales  of  Settled  Estates)   .    .  48,  878,  982,  1009 

c.  108  (Married  Women's  Property) 543,  1167 

c.  108,  s.  6 ' 554 

s.  7 554 

s.  9 554 

s.  10 554- 

22&23  Vict.  c.  35(  Property  and  Trustees'  Kelief  Amendment), 78,  102,  282,1098 

s.  12 290 

s.  13 283 

s.  14 103 

s.  15 103 

s.  16 103,  104 

s.  17 103 

s.  18 104 

s.  23 78 

23  Vie.  c.  28  (Wagers) 642 

23  &  24  Vict.  c.  106  (Lands  Clau.ses,  1860) 1025 

s.  69 1024 

c.  124  (Episcopal  and  Capitular  Estates) 65,  67,  1101 

c.  127  (Married  Woman) 607 

s.  28 607 

c.  145  (Mortgage,   Trustees) 48,  78,  1094,  1138,  1155 

s.  11 108 

ss.  11-30 48 

s.  29 78,  79 

s.    34 79 

c.  153  (Landed  Property,  Ireland.  Improvement,  1860),  893, 1154 

24  &  25  Vict.  c.  161  (Statute  Law  Revision) 640,  665,  686 

c.  114  (Will,  Probate) 279 

c.  134  (Bankruptcy,  1881) 1128 

s.  110 804,  11^8 

s.  192 199,  308 

s.  194 308 

25&26  Vict.  c.  42  (Rolfs  Act) 957 

c.  53  (Land  Registry) 1122 

s.   63 779 

s.  73 779 

c.  63  (Merchant  Shipping  Act,  1854,  Amendment),  .    .    .  246,  931 
c.  86  (Lunatic) 

s.  12 1018 

8.  13 .    1018 

c.  87  (Industrial  and  Provident  Societies) 1122.1199 

c.  89  (Companies,  1862) , 187 

s.  43 776 

s.  57 187 

s.  165 182,  184,  187 

c.  108  (Confirmation  of  Sales) 283 


TA15LE  OF  STATUTES  CITED.  Ixvii 

[Tho  paginfi  refers  to  the  ['1  pages.  ]  ) 

PAQF. 

2r>  Si  2r,  Vict.  0.  4:2  83.  1,  2,  3 2H:i 

s.  o 284 

20  &  27  Vict.  c.  125  (Stutute  Law  He-vision,  im:i) fioG,  839,  84H 

27  &  28  Vict.  c.  45  (Leases  and  Sales  ol  Settled  Instates)  .    .  48,  878,  9«2,  1909 

c.  112  (Judgment) 711    1194 

s.  8 716 

:!()  iS:  31  Vict.  c.  29  (Joint  Stock  Bank) 

s.  1 929 

c.  48  (Sale  of  Land  by  Auction) 1200 

s.  7 208 

c.  59  (Statute  Law  Revision,  1867) 642,656.841) 

c.  69  (Real  Estate  Charges)  258,  392,  751,  762,  764,  765,  766,  769, 

986.  1143,  1204 
c.  144  (Insurance) 324 

31  &  32  Vict.  c.  4,  (Sales  of  Reversions)  ....    679,  680,  684,  687,  1096,  1098 

si  687,  688 

s.  2 687 

c.  86  (Marine  Insurance) 324 

c.  40  (Partition  Act,  1869) 

s.  8 1023,  1109 

32  &  33  Vict.  c.  38  (Bankruptcy  Repeal,  1869) 

ss.  2-20 351 

c.  42  (Irish  Church  Act,  1869) 68,  1025,  1110 

c.  46  (Debt) 135,  594,  721,  772 

c.  68  (Evidence), 

si 583 

c.  71  (Bankruptcy,  1869) 135,  798,  805,  1122 

s.  15.  .  ." 776 

sub-s.  5 776 

s.  22 324 

s.  49 186 

s.  65 -.800 

s  72 800 

s.  91 346,  351,  352,  1214 

c.  83  (Bankruptcy  Repeal) 199 

s.  20 308 

33  &  34  Vict  c.  14  (Naturalization,  1870) 526,  987,  1104 

c.  23  (Abolition  of  Forfeiture  for  Felony) 988 

s.  1 982 

s.  10 988 

c.  93  (Married  Women's  Property,  1870),  485,  523.  544,555,  .556, 
577.  579,  590,  592,  595,  597,  605,  1145,  1167,  1172,  117.5, 

1176,  1178 

si  509,  555 

s.  2 556 

s.  3 485,  ,5.56 

s.  4 485,  556 

s.  5 485,  ,556 

s.  6 556 

s   7  509,  .556 

s.  8 509,   5.55 

s.  9 594 

s.  10 556 

s   11  603,  604 

s.  12 590 

s.  13 577 

s.  14 577 

c.  97  (Stamps) 


liViii  TABLE  OF  STATUTES  CITED. 

[The  pairing  refers  to  the  [•]  pages.] 

PAGE 

33  &  34  Tiet.  C.  47  s.  105 781 

c.  102  Naturalization) 526,  988,  1105 

35  &  36  Vict.  c.  39  (Naturalization) .    .    .    526,988 

c.  63  (Statute  Law  Revision,  1872) 839 

36  &  37  Vict.  c.  66  (Judieature  Act,  1873),  529,  602,  896,  933,  1113,  1121,  1177, 

1194 

s.  <i.  sul)-s.  6 324 

s.'K) 957 

s.  24 *.....    933,  957 

suh-s.  5 601,  943 

sub-s.  7 289,  958 

8.  25,sub-s.  3 870 

sub-s.  6 324 

sub-s.  8    .......  • 864 

sub-s.  11     ...-.: 121,  224,  376,  870 

s.  34 529,  958 

sub-s  5 529 

s.  76 957 

lU  &  38  Vict.  c.  33  (Leases  and  Sales  of  Settled  Estates)  ...  48,  878,  982,  1009 

c.  37  (Appoiatments  under  Powers) 469,  1149 

s.  1 470 

s.  2  .    . 470 

c.  42  (Building  Societies,  1874) 

s.  42 719 

c.  50   (Married  Woraen's  Property  Act.  1870;  Amendment, 

1874)  ....  485,  509,  544,590,  592,  597,  1129.  1131, 1175 

s.  1 591 

s.  2 591 

s.  3 591 

s.  4 591 

s.,5 592 

c.  57  (Real  Property  Limitation) 391,  880,  1220 

s.  8    .    .    .    .  ■ 392,  716,  722 

c.  62  (Infant's  Relief)      695 

s.  1 695 

s.  2 695 

c.  78  (Vendors  and  Purchasers  Act,  1874) 701,1192 

s.  7 701 

38  &  39  Vict.  c.  66  (Statute  Law  Revision) 288 

c.  77  (Judicature  Act,  1875) 1128 

s.  10 ., 772,  803 

c.  87  (Land  Transfer,  1875) 11^ 

s.  48 385,  386 

s.  81      779 

s  129 701 

39  &  40  Vict.  c.  17  (Partition) 

s.  6 1024 

c.  30  (Leases  and  Sales  of  Settled  Estates,  1876)  48,  878,  982,1009 

ss.  4-12    . 48 

ss.  13,  14,  15 48 

s.  16 48 

ss.  46,  47.  48 48 

40  &  41  Vict.  c.  18  (Settled  Estates  Act,  1877)  .  .  .  .48,  557,  878,  982,  1009, 

1155,  1168,  1215,  1219 

s.  4 856,  857 

s.  5 557 

-   s.  16 283,  878 

s.  19 283 


TABLE  OF  STATUTES  CITED.  Ixix 

{The  paging  refers  to  the  [•]  pages. J 

PAGE 

40<fe  41  Vict.  c.  18  ss.  84,  :ir>.  :}(i ft78,  1028 

s.  50 619 

s.  58      288 

c.  33  (Contingent  Remainders) 33,  853,  854 

s.  1 '.    .    .    .  33,  854 

c.  34  (Mortgage)      .    .    .392,751,703,765,987,1104,1143,1204 

s.  1 7(J5 

41  &  42  Vict.  c.  31  (Bills  of  Sale,  1878) 788 

s.  23 778 

42&43  Vict.  c.  78  (Settled  Estates) 982,1009 

44  &  45  Vict.  c.  12  (Stamp  Duties) 

s.  38 1087 

c.  41  (Conveyancing  and  Law  of  Projx^rty,  1881)    .    .    .  391.  545, 
581, '701,  857,  966,  982,  987,  1009,  1150,  1165,  1170,  121« 

s.  2 987 

s.  3 987 

s.  4 386,  960 

s.  9 966 

s.  19 108,  861 

sub-s.  4    .   ■. •  .    .    861 

.s.  25 : 800,  802 

44  &  45  Vict.  c.  41,  s.  30 386 

s.  36,  sub-s.  1 79 

sub-s.  2 79 

s.  39     .    .    .' 619 

s.  42,  sub-s.  2 85H 

sub-ss.  3-8 858 

s.  50 545,  581 

s.  55 391 

s.  61 224 

s.  65,  sub-s.  2 567 

s.  71 79,  108 

sub-ss.  1,2 • 48 

s.  73 701 

45  &  46  Vict.  c.  38  (Settled  Land,  1882)    .    .  43,  284,  466,  855,  982,  1009,  1094. 

1103,  1148,  1149,  1155,  1170,  1215 

s.  2,  sub-s.  5 49 

sub-s.  10 l.xxiii 

ss.  6-11 856 

s.  12  286 

s.  17      284 

ss.  21-24 984 

ss.  25-30 984 

''  s.  28 856,  861,  1217 

sub-s.  2 855 

s    29      856,  862 

s.  32 984 

s.  35,  sub-s.  1 877 

sub-s.  2 877 

s.  37 43 

sub-ss.  1,  2,  3 43 

s.  40 79 

s.  53 466 

s.  56 104,  1094 

ss.  58,  59,  60,  61,  62 49 

s.  61 567 

s.  63 104,  1094 

s.  64 48 


IxX  TABLE  OF  STATUTES  CITED. 

[The  paging  refers  to  the  [*]  pages.] 

PAGE 

45  &  46  Yict.  c.  39  (Conveyancing  Act,  1882)        1203 

s.  3 388 

s.  7 566 

c.  43  (Bills  of  Sale  Act,  1878;  Amendment,  1882)  .  778,  788,  1125 
(f.  52  (Bankruptcy  Act,  1883) 

s.  45 721 

c.  75  (Married  Women's  Property  Act,  1882)  .  258,  485,  509,  523, 
531,  544,  554,  556,  557,  570,  583,  588,  592,  595,  597, 
598,  599,  788.  894,  1111,  1129,  1131,  1133.  1145, 
1166,  1168,  1169,  1170,  1172,  1173,  1174,  1176,  117^. 

1180.  1197 

s.  1 313,  509,  531,  558 

sub-s.  1 556,  Ixxv 

sub-ss.  1-5 552 

sub-s.  2 575,  587,  588,  Ixxv 

sub-s.  3 588,  589,  Ixxv 

sub-s.  4 565,  587,  589,  617,  Ixxv 

sub-s.  5 579 

s.  2 509,  557,  566 

s.  3 583,  1175,  Ixxv 

s.  4 570,  1175 

s.  5 509,  515,  558.  566,  618 

s.  6 556,  559 

s.  7 556,  559 

c.  75,  s.  8 556,  560 

s.  9 556,  560 

s.  10 561 

s.  11 561 

s.  12  .    .    .    .  531,  605,  Ixxv 

s.  13 593,  Ixxv 

s.  14 593 

s   15 594 

s.  16  .    .' 594 

s.  17 560,  594 

s.  19 612,  618 

s.  20 577 

s.  21 258,  577 

s.  22  .    .   s 485,  604 

s.  23 595,  597 

s.  24 576 

46  &  47  Vict.  c.  39  (Statute  Law  Revision,  1883) 982 

c.  49  (Statute  Law  Revision,  1883) 957 

s.  5 957 

c.  52  (Bankruptcy,  1883)  .    .  135,  139,   351,  794,  798,  1122,  1157 

s.  30 186 

s.  37 186 

sub-s.  3 136,  140 

s.  44  (iii) 776 

s.  47 251, 1214 

sub-s.  2      352 

s.  93 800 

s.  120 800 

s.  125 772 

47  &  48  Vict.  c.  14  (Married  AVomen's  Property,  1884) 544.  583 

s.  1 583 

s.  2 544 

c.  18  (Settled  Land,  1884) 

s.  6     . 104 


TABLE  OF  STATUTES  CITED.  Ixxi 

[The  paging  refers  to  the  [']  patces.] 

PAGK 

47  &  48  Vict.  c.  18  s.  7 104 

s.  8 598 

c.  54  (Yorkshire  Registries,  1884)  388,  784,  797,  1127, 1192,  Ixxvii 

s.  7 388,  797,  Ixxviii 

c.  61  (Judicature  Act,  1884) 

ss.  9-12 950 

s.  14 101 

c.  71  (Intestates'  Estate.  1884) 1103,  11G2 

s.  4 ' 9^^2,  1045 

48  Vict.  c.  4  (Yorkshire  T^efiistries) Ixxvii,  Ixxviii 

48  &  49  Vict.  c.  2(j  (Yorkshire  Registries) Ixxvii,  Ixxviii 


(Ixxii) 


LEADING  CASES  IN  EQUITY. 


LORD  GLENORCHY  v.  BOSWELL. 


De  Term.  S.  Mich.  1733. 

[reported  CAS.  TEMP.  TALBOT,  3.] 

Executed  and  Executory  Trusts.] — A.  devises  real  estate  to  his 
sister  B.  and  C,  and  their  heirs  and  assigns,  upon  trusts,  until  his 
grand  daughter  D.  should  marry  or  die,  to  receive  the  profits,  and 
thereout  to  pay  her  £100  a  year  for  her  maintenance ;  the  residue 
io  pay  debts  and  legacies;  and  after  payment  thereof,  in  trust  for 
the  said  D. ;  and  ujjoji  further  trust,  that,  if  she  lived  to  marry  a 
Protestant  of  the  Church  of  England,  and  at  the  time  of  such 
marriage  be  at  the  age  of  twenty -one  or  upwards,  or,  if  tinder  that 
age,  such  marriage  be  with  the  consent  of  the  said  B.,  then  to  con- 
vey the  said  estate,  with  all  convenient  sijeed  after  such  marriage 
to  the  use  of  the  said  D.  for  life,  without  impeachment  of  waste, 
voluntary  waste  in  houses  excepted;  remainder  to  her  husband 
for  life ;  remainder  to  the  issue  of  her  body ;  with  remainders 
over : — Held,  that  though  D.  would  have  taken  an  estate  tail  had 
it  been  tlie  case  of  an  immediate  devise,  yet  that  the  trust  being 
executory,  tvas  to  be  executed  in  a  more  careful  and  more  accurate 
manner ;  and  that  a  conveyance  to  D.  for  life,  remainder  to  her 
husband  for  life,  7vith  remainder  to  their  first  and  every  other  son 
until  remainder  to  the  daughters,  would  best  serve  the  testator^s 
intent. 

Sir  Thomas  Pershall  devises  all  his  real  estate  to  his  sister, 
Anne  Pershall,  and  Robert  Bosville,  and  their  *  heirs  and  as-  [  *  2  ] 
signs,  upon  trust,  till  his  grand-daughter,  Arabella  Pershall, 
marry  or  die,  to  receive  the  rents  and  profits  thereof,  and  out  of  it 
to  pay  her  100^.  a  year  for  her  maintenance;  and,  as  to  the  residue 
to  pay  his  debts  and  legacies;  and,  after  the  payment  thereof,  then 
in  trust  for  his  said  grand -daughter;  and  upon  further  trust,  that 

•       73 


*  3  LORD  GLENORCUY  V.  BOSVILLE. 

if  she  lived  to  marry  a  Protestant  of  the  Church  of  England,  and 
at  the  time  of  such  marriage  be  of  the  age  of  twenty-one  or  up- 
wards, or  if  under  the  age  of  twenty-one,  and  such  marriage  be 
with  the  consent  of  her  aunt  the  said  Anne  Pershall,  then  to  convey 
the  said  estate  with  all  convenient  speed  after  such  marriage,  to  the 
use  of  the  said  Arabella  for  her  life,  ivithoid  imjyeachment  of  waste, 
voluntary  ivaste  in  houses  excepted;  remainder,  after  her  death,  to  her 
husband  for  life;  remainder  to  the  issue  of  her  body;  with  several 
remainders  over;  and,  upon  further  trust,  that  if  the  said  Ara- 
bella Pershall  die  unmarried,  then  to  the  use  of  the  said  Anne 
Pershall  for  life;  remainder .  to  the  son  of  his  other  grand- 
daughter, Frances  Ireland,  in  tail;  remainder  to  IVIr.  Bosville,  the 
defendant,  for  life;  remainder  to  his  first  and  other  sons;  remain- 
der to  the  testator's  right  heirs;  and,  upon  further  trust,  if  his 
grand-daughter  marry  not  according  to  the  directions  of  his  will, 
then,  upon  such  marriage,  to  convey  the  said  estate  to  trustees;  as 
to  one  moiety  thereof,  to  the  use  of  the  said  Arabella  for  life;  re- 
mainder to  trustees  to  preserve  contingent  remainders;  remainder 
to  her  first  and  every  other  son,  being  a  Protestant;  with  several 
remainders  over,  and,  as  to  the  other  moiety,  to  his  daughter  Ire- 
land's son,  in  like  manner. 

Sir  Thomas  Pershall  died  in  the  year  1722,  and  Mrs.  Arabella 
Pershall  in  1723  attained  her  full  age;  and  upon  a  treaty  of  mar- 
riage in  1729,  she  applies  to  the  trustees  for  a  conveyance  of  the 
estate  to  herself  for  life;  remainder  to  her  intended  husband  for 
life;  remainder  to  the  issue  of  her  body;  and  such  conveyance  was 
executed  by  one  of  the  trustees.  But  Mr.  Bosville,  the  other  trustee, 
who  was  also  a  remainderman,  refused  to  convey.  However, 
[  *  3  ]  she  having  by  this  conveyance  a  legal  estate  tail  in  *  one 
moiety,  and  an  equitable  estate  tail  in  the  other  moiety, 
suffered  a  recovery  to  the  use  of  herself  in  fee,  and  in  1730  married 
the  plaintiff,  the  Lord  Glenorchy,  who  made  a  considerable  settle- 
ment upon  her;  and  as  to  her  own-  estate  she  covenanted  to  settle 
it  upon  the  Lord  Glenorchy  and  herself  for  life;  remainder  to  the 
first  and  every  other  son  of  the  marriage,  in  tail  male;  and,  upon 
failure  of  such  issue,  to  the  survivor  of  the  said  husband  and 
wife,  in  fee. 

Argument  for  the  plaintiffs. — The  bill  was,  to  have  a  conveyance 
of  the  moiety  of  the  said  trust  estate  from  Mr.  Bosville  to  such  uses 
as  are  limited  in  the  said  covenant;  and  the  principal  question  was, 
74      * 


LORD  GLENORCHY  V.  BOSVILLE,  *  4 

whether,  under  the  Kuid  will,  the  Lady  Glenorchy  was  a  tenant  for 
life  or  in  tail?  upon  which  two  other  questions  arose,  viz.,  first, 
whether  the  w^ords  in  the  will,  in  an  immediate  devise  of  a  legal 
estate  would  have  carried  an  estate  tail  ?  secondly,  if  so,  whether 
the  Court  will  make  any  difference  between  a  legal  title  and  a  trust 
estate  executory? 

[^Lord  Chancellor  King.  —I  should  upon  the  first  question  make 
no  difficulty  of  determining  it  an  estate  tail,  had  this  been  an  im- 
mediate devise;  but  when  you  apply  to  this  court  for  the  carrying 
a  trust  estate  into  execution,  the  doubt  is,  whether  we  shall  not  vaiy 
from  the  rules  of  law  to  follow  the  testator's  intent;  which  will  also 
bring  on  another  question, — What  is  the  testator's  intent  in  the 
present  case?] 

Upon  the  second  question,  it  was  argued  for  the  plaintiffs,  that 
the  Lady  Glenorchy  was,  under  this  will,  entitled  to  an  estate  tail 
in  equity;  for  this  Court  puts  the  same  construction  upon  limita- 
tions of  trusts  in  equity  as  the  law  does  upon  legal  estates,  and  that 
to  prevent  confusion.  This  doctrine  is  laid  down  with  the  strong- 
est reasons  by  the  Earl  of  NotUngham  in  the  Duke  of  NorfoUc's 
case  (a);  and  the  authority  of  Baile  v.  Coleman,  2  Vern.  G70  (6), 
where  a  trust  to  one  for  life,  remainder  to  the  heirs  male  of  his  body, 
is  held  an  estate  tail,  has  never  yet  been  questioned.  So  it  is  held 
in  Legatt  v.  Seivell,  2  Vern.  551  (but  more  fully  reported  in 
1  Abr.  Eq.  Ca,  *394)  (c).  where  money  was  given  to  be  laid  [  *  -4  ] 
out  in  land  to  one  for  life,  and  after  his  decease  to  his  heirs 
male,  and  the  heirs  male  of  the  body  of  every  such  heir  male, 
severally  and  successively  one  after  another;  and  a  case  being  made 
for  the  opinion  of  the  judges  as  of  a  legal  estate,  they  certified  it 
to  be  an  estate  tail.  So,  in  the  case  of  Bagshaw  v.  Doicnes,  or 
Bagshaio  v.  Spencer,  at  the  Rolls,  Hil.  6  Geo.  2  (d),  an  executory 
trust  was  directed  to  the  judges  for  their  opinion  as  a  legal  estate. 
Upon  the  same  reason  do  cestuis  que  trust  levy  fines  and  suffer  re- 
coveries, which  are  held  good  in  this  Court.  Indeed,  in  marriage 
articles,  if  they  covenant  to  settle  to  the  husband  for  life,  remainder 
to  the  heirs  of  their  two  bodies,  this  Court  will  decree  a  conveyance 
in  strict  settlement,  if  any  of  the  parties  apply  here,  because  the 
children  are  looked  upon  as  purchasers.     But  in  a  will  it  is  other- 

(«)  3  ChrCaTsG-^TrandTSvvan.^t.  454. 

[h)  S.  C,  1  P.  Wms.  142;  1  Ves.  151. 

(c)  S.  C,  1  P.  Wilis.  87;  see  2  Ves.  657. 

{d)  Bagshaw  v.  Si)encer,  2Atk.  246,  57P;  on  appeal.  Id.  577. 

75 


*  5  LORD  GLENORCHY  V.  BOSVILLE. 

■wise;  they  take  through  the  bounty  of  the  testator,  and  in  such 
words  as  he  gives  it. 

It  was  further  insisted  for  the  plaintifPs,  that  the  words  issue  of 
her  body  would  make  a  difference  from  all  other  cases;  for,  in  the 
Statute  de  Donis  (13  Ed.  1)  which  created  entails,  it  is  said  to  be 
a  proper  word  for  that  purpose,  and  is  used  no  less  than  ten  times 
in  that  statute;  for  this  the  authority  of  King  v.  Melling,  1  Vent. 
214,  225  (e),  and  the  reason  ^there  given  cannot  be  contested,  which 
is  also  an  authority  in  the  principal  case;  for  there  it  is  held,  that 
a  devise  to  one  for  life,  with  a  power  to  make  a  jointure,  is  much 
stronger  to  shew  the  intent  of  the  testator  than  the  words  ivithout 
impeachment  of  waste.  To  A.  for  life,  remainder  to  the  issue  of 
her  body,  and,  for  want  of  such  issue,  remainder  over,  was  held  an 
estate  tail  in  the  Court  of  Exchequer,  in  the  case  of  Williams  v. 
Tompson,  about  three  or  four  years  ago.  Anders.  80.  To  one  for 
life,  remainder  to  the  children  of  his  body,  is  an  entail.  So  in 
Wild's  Case,  6  Co.  16  (L.  Cas.  E.  Prop.  581,  2nd  ed.),  and  Sweet^ 
apple  V.  Bindon,  2  Vern.  536. 

It  was  further  argued,  that,  if  the  remainder  in  this  case  to  the 
issue  be  construed  to  be  words  of  purchase,  they  must  be 
[  *  5]  attended  with  the  greatest  absurdity;  for  in  *what  manner 
can  the  issue  take?  All  the  sons,  daughters,  and  grand- 
children are  issue;  and  if  they  take  as  purchasers,  they  must  be 
joint-tenants,  or  tenants  in  common,  and  that  for  life  only  (/),  2 
Vern.  545;  which  construction  can  never  be  agreeable  to  the  testa- 
tor's intent;  and  whatever  estate  was  given  in  the  first  part  of  the 
will,  yet  the  words,  "awd  for  ivant  of  such  issue,  then,  &c.,  will 
give  the  plaintiff  an  estate  tail,  according  to  the  cases  of  Langley 
V.  Baldwin,  and  Shaw  and  Weigh,  1  Abr.  Eq.  Ca.  184,  185,  Fitzg. 
7.  It  was  also  further  urged,  that,  from  the  face  of  the  whole  will, 
and  by  comparing  this  clause  with  the  other,  it  appears  that  the 
testator  intended  the  plaintiff,  the  Lady  Glenorchy,  should  take  an 
estate  tail,  and  that  the  several  clauses  in  a  will  are  to  be  taken  to- 
gether, and  make  but  one  conveyance;  and  that  it  was  a  proper 
argument  to  prove  the  intention  of  the  party  from  the  different 
penning  of  the  several  clauses.  The  person  who  drew  the  will 
knew  how  to  convey,  either  by  words  of  limitation  or  purchase, 
where  there  was  occasion  for  it;  for  where  he  limits  the  estate  to 


(e)  S.  C.  2  Lev.  58,  61. 
(/)  Cook  V.  Cook. 

76 


LORD  GLENORCUY  V.  BOSVILLE.  *  G 

Mrs.  Ireland,  it  is  in  strict  settlement  by  proper  words  of  purchase; 
and  so  where  he  limits  it  to  the  Lady  Glenorchy,  in  case  she  had 
married  a  Papist.  But  further,  to  shew  he  well  understood  the 
doctrine  of  conveyances,  when  he  limits  by  words  of  purchase  to 
sons  not  in  esse,  he  has  put  in  trustees  to  preserve  contingent 
remainders,  which  he  would  certainly  have  done  in  this  case  had  he 
intended  the  Lady  Glenorchy  an  estate  for  life  only. 

Argument  for  the  'defendant. — For  the  defendant,  it  was  argued, 
that  though  in  the  construction  of  wills  in  this  Court,  uses  and  trusts 
are  to  be  governed  by  the  same  rules  as  legal  estates,  and  that  there 
is  but  little  difference  between  uses  and  trusts  executed  and  legal  es- 
tates; yet  trusts  executory  are  by  no  means  under  the  same  consid- 
eration. In  the  cases  of  Legatt  v.  Seivell  and  Bade  v.  Coleman,  the 
Judges  were  divided  in  their  opinions,  and  since  that  time  there  is 
an  express  authority  for  the  defendant.  In  the  case  of  Papil- 
lon  v.  Voice,  Hil.  5  Geo.  2  {g) ;  so  likewise  in  the  *case  of  the  [  *  6  ] 
Attorney -General  v.  Young,  in  the  Court  of  Exchequer;  and 
the  case  of  Leonard  v.  Earl  of  Sussex,  2  Veru.  520;  as  also  in  the 
case  of  Bramston  v.  Kinaston,  heard  at  the  Rolls  in  June,  1728, 
where  an  estate  was  given  by  the  testator  to  be  settled  upon  his 
grandchild  for  her  life,  remainder  to  the  issue  of  her  body;  and, 
when  she  applied  to  have  an  estate  tail  conveyed  to  her,  she  was  de- 
creed an  estate  for  life  only.  And  to  show  that  this  Court  is  not 
tied  up  to  the  rules  of  law  in  cases  of  executory  trusts,  the  case  of 
the  Ea7'l  of  Stamford  v.  Sir  John  Hobart,  concerning  Serjeant  May- 
nard's  will,  was  cited,  where  an  estate  was  given  to  trustees  to  con- 
vey one  moiety  to  Sir  John  Hobai't,  for  ninety-nine  years,  in  case  he 
should  so  long  live,  with  several  remainders  over;  and  this  Court 
decreed  the  Master  should  settle  the  conveyance  according  to  the 
letter  of  the  will;  but  upon  exceptions  to  the  Master's* Report,  Nov. 
19,  1709,  it  was  ordered  that  proper  estates  should  be  made  to  sup- 
port the  remainders,  that  the  testator's  intent  might  not  be  frus- 
trated; and  this  resolution  was  affirmed  in  the  House  of  Lords  (h). 
So  in  all  matters  executory,  this  Court  endeavours  to  find  the  intent 
of  the  parties,  and  lets  it  prevail  against  the  rules  of  law.  In  mar- 
riage settlements  it  was  never  doubted  but  that  this  Court  would 
carry  any  words  into  strict  settlement,  if  the  intent  of  the' parties 
was  such;  and  so  held  in  the  case  of  West  v.  Erisey,  in  the  House 

{g)  2  P.  Wms.  471. 

{h)  3  Bro.  P.  C.  31,  Toml.  ed.,  3()th  Mar.  1710. 

77 


*  7  LORD  GLENORCHY  V.  BOSVILLE. 

of  Lords  (?■);  and  in  that  of  Trevor  v.  Trevor,  1  Abr.  Eq.  Ca.  387  (A;); 
and  the  same  rules  will  prevail  in  cases  executory,  whether  wills  or 
articles.  Besides,  the  present  case  is  very  much  like  that  of  mar- 
riage articles.  The  testator  had  all  along  the  marriage  of  his  grand- 
daughter in  view,  and  intended  this  will  as  no  more  than  heads  or 
directions  for  the  trustees  in  what  manner  he  would  have  it  settled: 
and  so  it  remains  to  be  carried  into  execution  by  the  aid  of  this 
Court. 

Then  as  to  the  word  issue,  it  is  sometimes  a  word  of  limitation, 
sometimes  of  purchase.  There  is  a  case  mentioned  in  Wild's  Case, 
6  Co.  16,  where  to  one  and  his  children  is  held  to  be  an  estate 
[  *7  ]  tail;  yet  had  it  been  to  *  one  for  life,  remainder  to  his  chil- 
dren, there  can  be  no  doubt  but  that  it  had  been  a  bare  estate 
for  life.  And  as  to  the  objection,  that  the  issue,  if  purchasers,  are 
to  take  jointly  and  for  life  only,  why  shall  it  not  be  as  in  cases  where 
the  limitation  is  to  the  first  and  every  other  son,  and  wherever  heirs 
of  the  body  are  held  to  be  words  of  purchase,  they  are  construed  to 
the  first  and  every  other  son? 

To  make  an  estate  tail  arise  by  implication  upon  the  words  "  and 
for  xvant  of  such  issue,'^  has  been  cited  the  case  of  Langley  v.  Bald- 
win, 1  Abr.  Eq.  Ca.  185.  But  there  is  the  case  of  Bamfield  v.  Pojy- 
ham,  2  Vern.  427,  449,  for  the  defendant,  so  the  case  of  Loddington 
V.  Kime,  3  Lev.  431,  and  that  of  Backhouse  v.  Wells,  1  Abr.  Eq.  Ca. 
184';  besides,  it  is  a  general  rule,  that  where  an  estate  is  to  be  raised 
by  implication,  it  must  be  a  necessary  and  inevitable  implication, 
and  such  as  that  the  words  can  have  no  other  construction  whatso- 
ever; and  in  the  present  case,  there  is  the  word  "issue"  mentioned 
before;  so  that  these  last  words  must  relate  to  the  issue  before  men- 
tioned. Whereas  in  the  case  of  Langley  v.  Baldwin,  the  limitation 
is  to  six  sons  only;  then  come  the  words  "  and  for  want  of  issue,'' 
which  words  could  not  have  relation  to  anything  before  mentioned. 

Lord  Chancellor  Talbot  had  taken  time  to  advise,  and  to  have 
the  opinion  of  the  judges  upon  this  case:  And  the  same  coming 
now  again  to  be  argued  upon  the  same  points  that  had  been  before 
the  late  Lord  Chancellor  (Lord  King). 

Argument  for   the  plaintiffs. — It  was  insisted  by  the  plaintifF's 


(i)  1  Bro.  P.  C.  225.  Toml.  eel.,  overruling  the  decision  of  the  Barons  of  the 
Exchequer,  reported  2  P.  Wins.  349.  v 

{k)  S.  C,  1  P.  Wms.  622;  5  Bro.  P.  C.  122,  Toml.  ed. 

78 


LORD  QLENORCIIY  V.  BOSVILLE.  *8 

counsel,  that  the  Lady  Glenorchy's  marryiug  a  Protestant  of  the 
Church  of  England  at  or  after  the  age  of  twenty-one,  or,  if  under 
that  ago,  marrying  such  an  one  with  her  aunt's,  or  incase  she  was 
dead,  with  the  other  trusteos'  consent,  w'as  a  condition  precedent; 
which,  when  performed,  would  give  hor  an  estate  tail.  That  this 
intent  appeared  from  the  different  penning  of  the  several  clauses  in 
this  will;  for  it  provides,  in  case  she  should  not  marry  such  a  person 
as  is  before  described,  that  she  should  have  but  a  moiety  for 
*  life,  and  trustees  are  appointed  to  preserve  contingent  ro-  [  *  8  ] 
mainders;  none  of  which  are  injoined  in  case  she  should 
marry  a  Protestant  of  the  Church  of  England;  which  shows  a  differ- 
ence was  intended  in  case  of  performance  and  non-performance  of 
the  condition.  Then  considering  it  as  a  legal  devise,  no  doubt 
but  that  a  devise  to  one  and  the  issue  of  his  body  will  make  an 
estate  tail;  and  so  it  was  held  in  the  case  of  King  v.  Melling,  1 
Vent.  214,  225,  notwithstanding  the  proviso  there,  empowering  the 
devisee  to  make  a  jointure;  so  if  in  this  case  the  land  itself  had 
been  devised  to  the  Lady  Glenorchy,  it  would  have  made  an  entail 
at  law;  and  there  is  no  difference  between  an  entail  of  a  legal  es- 
tate and  of  an  equitable  one.  TF^7d's  Case,  6  Co.  16,  devise  to  a 
man  and  his  children,  who  had  then  two  children  alive,  the  devisee 
took  but  for  life;  but  in  King  v.  Melling,  1  Vent.  214,  225,  Lord 
Hale  said,  that  had  there  been  no  children  living,  in  that  case  of 
Wild,  it  would  have  been  an  estate  tail;  though  "children"  be  not 
80  strong  a  word  as  "issue";  which  in  many  statutes,  particularly 
the  Statute  de  Donis  (13  Edw.  1),  takes  in  all  the  children.  In 
Shellei/s  Case,  1  Co.  88  b  (L.  Cas.  R.  Prop.  507,  2nd  ed.),  it  is 
said,  that  if  there  be  a  gift  to  one  for  life,  be  it  by  deed  or  will,  and 
afterwards  comes  a  gift  to  the  heirs  of  his  body,  it  is  an  entail; 
otherwise  indeed,  if  the  limitation  be  to  the  heirs  male  of  such  heir 
male,  as  in  Archer'' s  Case,  1  Co.  66;  there  it  would  make  but  an 
estate  for  life,  because  the  limitation  thei'e  is  grafted  upon  the  word 
"heirs."  So,  in  the  case  of  Backhouse  v.  Wells,  m  B.  R.  1712,  1 
Abr.Eq.  Ca.  184,  the  devisee  took  but  for  life,  the  limitation  being 
there  grafted  upon  the  word  "issue;"  which  for  that  reason  was 
taken  to  be  only  a  description  of  the  person  in  that  case;  but  in 
Cosen's  Case,  Owen,  29,  and  in  Langley  v.  Baldicin,  1  Abr.  Eq. 
Ca.  185,  the  estate  tail  was  raised  by  implication;  which  shews  that 
an  estate  tail  may  pass  not  only  by  express  words  but  by  impli- 
cation also.      In  Ki7ig  v.  Melling,  the  Lord    Hale  said  upon  Wild's 

79 


*  10  LORD  GLENORCHY  V.  BOSVILLK. 

Case,  "  That  had  it  been  to  the  children  of  the  body,  it  would  have 

passed   an   entail;"   and  yet   none   of  those  cases  seem  so 

[  *  9  ]  *  strong  as  the  present.     So  in  the  ease  of   Cook  v.  Cook,  2 

Vei-n.  545,  it  is  said,  "  That  a  devise  to  one  and  his  children, 

if  there  be  no  children  living,  will  be  an  estate  tail." 

The  exception  of  waste  is  next  to  be  considered;  and  had  it  not 
been  for  that,  this  would  clearly  have  passed  an  entail;  but  this 
exception  varies  not  the  case,  for  here  the  estates  must  disjoin  ac- 
cording to  Lewis  Bowles's  Case,  11  Co.  79  b  (L.  Cas.  R.  Prop.  37, 
3rd  ed.),  to  let  in  the  husband's  estate,  which  must  intervene  be- 
tween her  estate  and  that  of  her  issue;  and  the  power  of  commit- 
ting waste  [voluntary  ivaste  in  houses  excepted)  was  given  only  to 
make  her  dispunishable  of  waste  during  the  time  she  should  be 
tenant  for  life  only;  which  she  must  be  until  her  husband's  death, 
by  reason  of  the  remainder  to  him,  but  not  at  all  to  restrain  the  es- 
tate, which  the  words  of  the  will  give  her,  which  is  plainly  an  es- 
tate tail.  The  adding  the  words,  "^uiithout  impeachment  of  waste,^^ 
can  alter  nothing;  for  if  she  was  tenant  in  tail,  she  had  already  in 
her  that  power  which  these  words  would  give  her;  and  the  express- 
ing the  power  which  was  already  in  her  could  no  more  abridge  her 
estate  (according  to  the  maxim  of  Expressio  eorum  quce  tacith  in- 
sunt  nil  operatur)  than  the  power  of  making  the  jointure  did  in 
King  and  Melling^s  Case.  In  Langley  v.  Baldwin  there  were  the 
same  words  as  here;  and  in  that  of  Shatv  and  Weigh,  or  Sparroiv  v. 
Shaiv  {l),l  Abr.  Eq.  Ca.  184,  which  went  up  to  the  House  of  Lords, 
the  prohibition  went  not  only  to  voluntary  but  to  all  manner  of 
waste,  and  yet  there  it  was  decreed  to  be  an  estate  tail;  which  was 
a  much  stronger  implication  to  make  the  sister  to  be  but  tenant  for 
life  than  any  in  the  present  case.  And  in  Baile  v.  Coleman,  2 
Vern.  670,  an  estate  tail  was  decreed  by  the  Lord  Harcourt,  not- 
withstanding the  power  of  leasing  given  to  Christopher  Baile.  Nor 
can  the  other  words  voluntary  waste  in  houses  excepted,  carry  the 
implication  further  than  the  former;  since  this  Court  will  often  re- 
strain a  tenant  for  life  without  impeachment  of  waste,  from  com- 
mitting waste,  notwithstanding  his  power,  as  was  declared 
[  *  10  ]  by  the  Earl  of  Nottingham  in  Williams  v.  Day,  *  2  Ch.  Ca. 
32,  who  there  said,  that  he  would  stop  the  pulling  down  of 
houses  or  defacing  a  seat  by  tenant  in  tail  after  possibility  of  issue 
extinct,  or  by  tenant  for  life,  though  dispunishable  of  waste  by  ex- 
(?)  3  Bro.  P.  C.  120,  Toml.  ed. 

80 


LORD  GLENORCIIY  V.  BOSVILLE.  *  1 1 

press  grant  or  by  trust;  and  the  like  has  been  since  done  in  the 
case  of  Vane  v.  Lord  Barnard.,  2  Yern.  733.  By  comparing  this 
with  the  other  clauses  of  this  will,  it  appears  plainly  that  the  testa- 
tor did  not  intend  the  Lady  Glenorchy  a  less  estate  than  to  the 
other  devisees;  but  that  his  design  was  to  prefer  her  and  her  issue 
to  that  of  Mrs.  Frances  Ireland,  though  Frances  was  dead  at  the 
time  of  the  will;  and  that  lier  son,  who  could  expect  no  more  fa- 
vour than  his  mother  could,  had  she  been  living,  should  not  have  an 
immediate  estate  tail,  and  so  a  greater  estate  than  she  who  was  in- 
tended to  be  most  preferred.  It  is  plain  the  testator  well  knew  the 
difference  between  giving  an  estate  for  life  and  an  estate  tail,  by 
the  different  wording  of  the  clauses  of  this  will.  In  that,  whereby 
he  devises  the  remainder  to  Mr.  Bosville,  these  words  are  purposely 
omitted;  and  in  others  he  gives  the  Lady  Glenorchy  several  es- 
tates, according  to  her  marrying  such  or  such  persons,  Protestants 
or  Papists;  and,  consequently,  he  must  be  thought  to  have  intended 
her  a  greater  estate  upon  her  performing  than  upon  her  not  per- 
forming the  condition.  If,  therefore,  these  words  would  create  an 
estate  tail  at  law,  the  construction  will  be  the  same  here,  since  a 
Court  of  equity  ought  Hot  to  go  further  than  the  Courts  of  law;  as 
was  held  by  Lord  Coicper  in  the  case  of  Legatt  v.  Seivell,  2  .Vern. 
551,  1  Abr.  Eq.  Ca.  394,  and  was  also  held  by  Lord  Harcourt  in 
the  case  of  Baile  v.  Coleman,  2  Vern.  670,  where  he  takes  a  differ- 
ence between  cases  arising  upon  wills  and  cases  arising  upon 
marriage  articles,  where  the  persons  being  all  purchasers,  the 
agreement  is  to  be  carried  into  stricter  execution  than  in  the  case 
of  a  Avill,  where,  the  parties  being  but  volunteers,  the  words  must 
be  taken  as  you  find  them.  The  same  is  held  totidem  verbis  in  the 
case  of  Sweeiapple  v.  Bindon,  2  Vern.  536,  where  it  is  said,  "  That 
in  a  devise,  all  being  volunteers,  the  devisee's  estate  is  not 
to  be  restrained,  nor  is  there  any  argument  to  be  *  drawn  [  *  11  ] 
from  this  being  an  executory  trust,  since  the  case  of  Baile 
V.  Coleman  was  such,  and  looked  upon  as  such  by  the  Lords  Coiv- 
per  and  Harcourt;  and  the  case  of  Leonard  v.  Earl  of  Stissex,  2 
Vern.  526,  is  widely  different  from  ours,  for  there  was  an  express 
injunction  that  it  should  be  settled  in  such  manner  as  that  the  sons 
should  never  have  it  in  their  power  to  bar  the  issue. 

Argument  for  the  defendant. — It  was  argued  for  the  defendant 
by  Mr.  Attorney -General,  Mr.  Fen?  ei/,  and  Mr.  Fazakerley,  that  the 
L^dy  Glenorchy  could  take  but  an  estate  for  life;  and  they  took  a 

6   WHITE  ON   EQUITY.  .  81 


*  12  LORD  GLENORCHY  V.  BOSVILLE. 

difiPerence  between  the  present  case,  being  of  an  executory  trust, 
and  those  of  Cosen's,  and  of  Cook  v.  Cook,  which  were  legal  estates 
and  executed.  The  resolution  in  Sondaifs  Case,  9  Co.  127  b  (which 
was  likewise  of  a  legal  estate)  was  chiefly  founded  upon  the  proviso, 
restraining  the  son  or  his  issue  from  aliening,  which  made  the 
argument  that  ho  was  intended  by  the  testator  to  be  tenant  in  tail, 
since,  if  he  had  been  but  tenant  for  life,  the  restraint  had  been  vain 
add  needless.  In  the  case  of  Langley  v.  Baldivin,  an  estate  tail 
was  raised  by  implication  upon  the  words,  "  if  he  die  without  issue 
male;  "  because  the  devise  extending  no  further  than  the  sixth  son> 
no  son  born  after  could  have  taken;  but  the  heir-at-law  must  have 
been  preferred;  whereas  his  intent  was  to  provide  equally  for  all 
his  sons,  and,  therefore,  the  raising  an  estate  tail  by  implication 
(besides  that  it  Avas  in  the  case  of  a  legal  estate)  was  carrying  the 
testator's  intent  into  execution.  The  case  of  King  \.  Melling  has, 
indeed,  gone  very  far,  but  has  always  been  looked  upon  as  the  ne 
plus  ultra,  beyond  which  no  Court  would  ever  go.  This  appears 
from  the  resolution  in  the  case  of  Backhouse  v.  'Wells,  where  the 
intent  of  the  parties  prevailed  against  the  doctrine  now  insisted  on. 
But  it  is  said,  the  word  issue  is  always  a  word  of  limitation.  In 
that  of  Sweetapple  v.  Bindon,  the  words  did  of  themselves  carry  an 
'  estate  tail,  and  there  was  no  intent  appearing  to  the  contrary.  And 
in  Legatt  v.  Servell,  one  judge  was  of  opinion  it  was   but  an  estate 

for  life,  and  that  case  was  afterwards  agreed. 
[  *  12  ]  The  difference  which  was  insisted  on  in  the  former  *  argu- 
ment, and  is  still  strongly  relied  on  for  the  defendant,  be- 
tween legal  estates  and  trusts  executed  and  trusts  executory,  is  evi- 
dent, and  appears  plainly  from  the  case  of  Leonard  v.  Earl  of 
Sussex,  where  the  words  were  much  stronger  to  create  an  estate 
tail  than  they  are  here;  but  yet,  in  that  case,  the  Court  declared, 
that,  it  being  a  trust  executory,  the  provision  should  be  looked 
upon  as  strong  for  the  benefit  of  the  issue,  as  if  it  had  been  in 
marriage  articles;  and  that  the  testator's  intent  (appearing  by 
the  subsequent  words),  '■'that  none  should  have  poirer  to  dock 
the  entail,''  should  be  observed,  therefore  decreed  but  an  es- 
tate for  life.  This  difference  appears  likewise  from  the  cases 
of  White  v.  Thornhorough,  2  Vern.  702,  and  Trevor  v.  Trevor, 
Eq.  Ca.  Ab.  387,  and  from  that  of  Papillion  v.  Voice,  Hil.  5 
Geo.  2,  which  is  not  distinguishable  from  our  case,  except  that 
there  were  trustees  appointed  in  that  case  to  preserve  contin- 
82 


LORD  GLENORCIIY  V.  B03VILLH.  *  13 

gent  remainders,  which  are  not  in  this.     But  notwithBtanding  that 
provision,  the  hito    Lord   Chancellor  King  declared,  in  that  case, 
that  the  limitation,  had  it  been  by  act  executed,  would  have  created 
an  estate  tail ;  but  that  the  trust  being  executory,  and  to  be  carried 
into  execution  by  the  assistance  of  this  Court,  he  Avould  keep  the 
parties  to  the  observance  of  the  testator's   intent,   which  plainly 
governs  the  present  case;  and  by  all  those  it  appears  that  the  testa- 
tor's intent  is  as  much  to  be  observed  in  cases  of  executory  devises 
as  of  marriage  articles.     If,  therefoie,  the  testator's  intent  is  to  be 
observed,  and  that  no  words  which  may  have  any  operation  are  to 
bo  rejected,  it  plainly  appears  from  this  and  the  other  clauses  of 
this  will,   that    Sir    Thomas    Pershall  intended  this  lady   only  an 
estate  for  life.     It  is  true,  indeed,  that  the  word  "  issue  "  in  a  will  is 
generally  a  word  of  limitation,  and  creates  an  estate  tail;  but  that  is 
only  where  no  intent  appears  to  control  it.     And  in  every  clause  of 
this  will,  where  he  intends  only  an  estate  for  life,  he  mentions  the 
word  "/or  life;  "  and  where  he  intends  an  estate  tail,  there  is  not 
a  woi'd  mentioned  of  impeachment  of  waste,  which  shews  he  knew 
what  he  was  doing  when  he  inserted  this  exception,  and  was 
not*  ignorant  of  the  operation  these  words  would  have  [*13] 
on  the  several  estates.     And  these  words  were,  in  the  case 
of  LodcUngton  v.  Kime,  3  Lev.  431,  taken  to  be  a  strong  implication 
of  the  testator's  meaning  to  give  but  an  estate   for  life,  notwith- 
standing the  other  words,  which  seemed  to  carry  an  entail.     Nor  is 
there  any  colour  for  what  has  been  insisted  on  for  the  plaintifp,  that 
the    power  of  committing  waste,  with  the  restraint  of  voluntary 
waste  in  houses,  was  designed  only  to  attend  on  her  estate  for  life, 
till,  by  her  husband's  death,  she  should  come  to  be  tenant  in  tail, 
since  no  more  could  be  meant  by  it  than  ^o  restrain  her  from  de- 
facing or  pulling  down  houses  while   she  was   in  her  husband's 
power,  the  testator  not  knowing  who  her  husband  might  be.     This 
power  of  committing  waste  has  been  compared  to  the  power  of  leas- 
ing in  the  case  of  Bailie  v.  Coleman,  though  they  are  widely  differ- 
ent; nor  can  it  be  compared  to  that  of  making  a  jointure  in  King 
v.  Melling;  for,  since  tenant  in  tail  cannot  make  a  jointure  without 
a  recovery,  the  power  was  as  proper  to  be  annexed  to  an  estate  tail 
as  to  an  estate  for  life,  which  was  one  of  the  reasons  of  Lord  Hale's 
opinion  in  that  case.     In  our  case,  to  serve  the  intent  of  restraint 
of  waste  in  houses,  she  must  be  decreed  but  an  estate  for  life;  if  it 
be  an  estate  tail,  she  will  bo  enabled  to  commit  waste  in  houses  as 

83 


*  14  LORD  GLENORCHY  V.  BOSVILLE. 

well  as  in  all  the  other  parts  of  the  estate,  notwithstanding  any  re- 
straint to  the  contrary.  Nor  will  the  answer  that  has  been  given 
to  this,  that  she  might  be  restrained  in  this  Court,  avail;  since  no 
instance  can  be  shewn  where  a  tenant  in  tail  has  been  restrained 
from  committing  waste  by  an  injunction  of  this  Court. 

[Lord  Chancellor. — That  was  refused  in  Mr.  Saville's  Case  (a), 
of  Yorkshire,  who,  being  an  infant,  and  tenant  in  tail  in  possession, 
in  a  very  bad  state  of  health,  and  not  likely  to  live  to  full  age,  cut 
down  by  his  guardian  a  great  quantity  of  timber  just  before  his 
death,  to  a  very  great  value;  the  remainderman  applied  here  for  an 
injunction  to  restrain  him,  but  could  not  prevail.] 

The  other  objection,  that  Sir  Thomas  Persball  could  never 
[  *  14  ]  intend  the  Lady  Glenorchy  a  less  estate  than  the  *  children 
of  his  other  grand- daughter,  Frances  Ireland,  turns  rather 
against  the  plaintiff;  for  the  testator's  intent  was  to  provide  for  the 
Lady  Glenorchy's  children  preferably  to  those  of  Frances  Ireland) 
and  therefore  he  makes  the  lady  herself  but  tenant  for  life,  and  her 
children  tenants  in  tail.  Nor  is  anything  more  common  than  to 
limit  an  estate  for  life  only  to  the  first  taker,  by  which  the  intent  of 
providing  for  children  is  better  answered  than  if  the  first  taker 
was  made  tenant  in  tail,  Nor  will  there  in  this  case  follow  the  in- 
convenience that  has  been  mentioned,  by  making  the  issue  to  be 
purchasers,  viz.,  that  the  issue  must  take  jointly,  and  takes  estates 
for  life  only;  for  if  issue  benomen  collectivum,  as  has  been  insisted 
for  the  plaintiflPs,  why  may  it  not  be  so  as  well  where  they  take  by 
purchase,  as  where  they  take  by  limitation  ?  especially  where  the 
testator's  intent,  that  they  should  take  successively,  and  by  seniority 
of  birth,  is  as  well  served  by  their  taking  one  way  as  the  other. 
And  if  the  word  issue  be«tantamount  to  the  word  heirs,  as  it  has 
been  agreed  to  be,  they  have  answered  themselves.  In  the  case  of 
Burchett  v.  Durdant,  2  Vent.  311,  and  in  2  Lev.  232,  by  the  name 
of  James  v.  Richardson,  the  words,  "  heirs  of  the  body,^'  were  held 
to  be  words  of  purchase,  by  reason  of  the  words  "  noio  Uving,'^ 
which  came  just  after,  and  yet  were  at  the  same  time  determined  to 
carry  an  estate  tail,  the  word  " /*ezVs "  being  nomen  collectivum; 
and  if  so,  in  case  of  a  legal  estate  executed,  much  more  ought  this 
construction  to  hold  here;  this  will  being  meant  by  the  testator 
only  as  heads  of  a  settlement  to  be  made,  and  so  may  well  be  thought 

(a)  See  Mos.  224. 
84 


LORD  GLENORCIIY  V.  LOSVILLE.  *  15 

not  to  have  been  so  accurate  in  the  wording  as  if  the  conveyance 
were  then  to  have  been  drawn  up  with  advice  of  counsel,  and  all 
other  assistances  to  make  it  formal. 

Lord  Chancellor  Talbot. — Several  observations  have  been  made 
on  the  different  penning  of  several  clauses  of  this  will,  from  which 
I  think  no  inference  can  be  drawn;  the  testator  having  expressed 
himself  variously  in  many,  if  not  in  all  of  them.  It  is 
plain,  that  by  the  *  hrst  part  of  this  will  he  intended  her  [  *  15  ] 
but  an  estate  for  life  till  marriage;  then  comes  the  clause 
upon  which  the  question  depends.  But  before  I  give  my  opinion 
of  that,  I  must  observe,  that  the  trustee  has  not  done  right;  for 
nothing  was  to  vest  till  after  her  maiTying  a  Protestant.  The 
trustee  therefore  by  conveying,  and  enabling  her  to  suffer  a  recovery 
before  marriage,  which  has  been  done  accordingly,  has  done  wrong. 

Construction  of  the  devise  assuming  it  to  he  legal  and  executed. — 
But  the  great  question  is,  what  estate  she  shall  take  ?  And  first, 
considering  it  as  a  legal  devise  executed,  it  is  plain  that  the  first 
limitation,  with  the  power  and  restriction,  carries  an  estate  for  life 
only;  so  likewise  of  the  remainder  to  the  husband:  But  then  come 
the  words  ^-remainder  to  the  issue  of  her  body,''''  upon  which  the 
question  arises.  The  word  ^'issue"  does,  ex  vi  termini,  comprehend 
all  the  issue;  but  sometimes  a  testator  may  not  intend  it  in  so  large 
a  sense,  as  where  there  are  children  alive,  &c.  Th^at  it  may  be  a 
word  of  purchase  is  clear,  from  the  case  of  Backhouse  v.  Wells,  and 
of  limitation,  by  that  of  King  v.  MelUng;  but  that  it  may  be  both 
in  the  same  will  has  not  nor  can  be  proved.  The  word  "/iciVs"  is 
naturally  a  word  of  limitation;  and  when  some  other  words  express- 
ing the  testator's  intent  are  added,  it  may  be  looked  on  as  a  word 
both  of  limitation  and  purchase  in  the  same  will;  but  should  the 
word  'Hssiie^'  be  looked  upon  as  both,  in  the  same  will,  what  a  con- 
fusion would  it  breed;  for  the  moment  any  issue  was  born,  or  any 
issue  of  that  issue,  they  would  all  take.  The  question  then  will  be, 
whether  Sir  Thomas  Pershall  intended  the  Lady  Glenorchy's  issue 
to  take  by  descent  or  by  purchase  ?  If  by  purchase,  they  can  take 
but  for  life,  and  so  every  issue  of  that  issue  will  take  for  life;  which 
will  make  a  succession  ad  infinitum,  a  perpetuity  of  estates  for  life. 
This  inconvenience  was  the  reason  of  Lord  Hale's  opinion  in  King 
V.  Mclling,  that  the  limitation  there  created  an  estate  tail.  It  may 
be,  the  testator's  intent  is  by  this  construction  rendered  a  little  pre- 

85 


*  17  LORD  GLENORCHY  '^.  BOSVILLE. 

carious;  but  that  is  from  the  power  of  the  law  over  men's 
[  *  IG]  estates,  and  to  prevent  confusion,     Restraint  *from  waste 

has  been  annexed  to  estates  for  life,  which  have  been  after- 
wards construed  to  be  estates  tail.  I  do  not  say  that  where  an  ex- 
press estate  tail  is  devised,  that  the  annexing  a  power  inconsistent 
with  it  will  defeat  the  estate :  No,  the  power  shall  be  void.  But  there 
the  power  is  annexed  to  the  estate  for  life,  which  she  took  first;  and 
therefore  I  am  rather  inclined  to  think  it  stronger  than  King  v. 
Melling,  where  there  was  no  mediate  estate,  as  there  is  here  to  the 
husband;  there,  there  was  an  immediate  devise,  here  a  mediate  one; 
so  the  applying  this  power  to  the  estate  for  life  carries  no  incon- 
gruity with  it.  As  the  estate  of  Kivg  v.  Melling  has  never  been 
shaken,  and  that  of  Shaw  v.  Weiglt,  or  Sparroiv  v.  Shaic,  which 
went  up  to  the  House  of  Lords,  was  stronger,  I  do  not  think  that 
Courts  of  equity  ought  to  go  otherwise  .than  the  Courts  of  law;  and 
therefore  am  inclinable  to  think  it  an  estate  tail  as  it  would  be  at 
law. 

Construction  of  the  devise,  it  being  executory. — But  there  is 
another  question,  viz..  How  far  in  cased  of  trusts  executory,  as  this 
is,  the  testator's  intent  is  to  prevail  over  the  strength  and  legal  sig- 
nification of  the  words  ?  I  repeat  it,  I  think,  in  cases  of  trusts  ex- 
ecuted or  immediate  devises,  the  constimction  of  the  Courts  of  laiu 
and  equity  ought  to  be  the  same;  for,  there  the  testator  does  not  sup- 
pose any  other  conveyance  ivill  be  made;  but  in  executory  trusts  he 
leaves  someivhat  to  be  done ;  the  trusts  to  be  exectded  in  a  more  care- 
ful and  more  accurate  manner.  The  case  of  Leonard  v.  the  Earl 
of  Sussex,  had  it  been  by  act  executed,  would  have  been  an  estate 
tail,  and  the  restraint  had  been  void;  but  being  an  executory  trust,  the 
Court  decreed  according  to  the  intent  as  it  icas found  expressed  in  the 
will,  which  must  now  govern  our  construction.  And  though  all  par- 
ties claiming  under  this  will  are  volunteers,  yet  are  they  entitled 
to  the  aid  of  this  Court  to  direct  their  trustees.  I  have  already 
said  what  I  should  incline  to,  if  this  was  an  immediate  devise;  but 
as  it  is  executory,  and  that  such  construction  may  be  made  as  that 

the  issue  may  take  without  any  of  the  inconveniences  which 
[*17]  were  the  foundation  of  the  ^resolution  in  King  v.  Melling'' s 

Case,    and  that  -as  the  testator's  intent  is  plain   that  the 

issue  should  take,  due  conveyance,  by  being  in  the  common  form, 

viz.,  to  the  Lady  Glenorchy  for  life,  remainder  to  her  husband  the 

Lord  Glenorchy  for  life,  remainder  to  their  first  and  every  other  son 

86* 


LORD  GLENORCHY  V.  BOSVILLK.  *  18 

with  a  remainder  to  the  daughters,  will  best  serve  the  testator's 
intent.  In  the  case  of  Earl  of  Stamford  v.  Sir  John  Hobart,  Dec. 
10,  1709,  it  appeared  tliat,  for  want  of  trustees  to  preserve  the  con- 
tintrent  remainders,  all  the  uses  intended  in  the  will  and  in  the  Act 
of  Parliament  to  take  effect,  might  have  been  avoided:  and  there- 
fore the  Lord  (Joicper  did,  notwithstanding  the  words  of  the  Act, 
upon  great  deliberation,  insert  trustees.  In  the  case  of  Leyutt  v. 
Sewill,  the  words,  if  in  a  settlement,  would  have  made  an  estate 
tail;  and  in  that  of  Baile  v.  Coleman,  the  execution  was  to  be  of 
the  same  estate  as  he  had  in  the  trust,  which  in  construction  of  law 
was  an  estate  tail.  Nor  is  the  rule  generally  true,  that  in  articles 
and  executory  trusts  different  constructions  are  to  be  admitted;  the 
late  case  of  Papillon  v.  Voice  is  directly  against  this,  and  it  seems 
to  me  a  very  strong  authority  for  executing  the  intent  in  the  one 
case  as  well  as  the  other. 

And  so  decreed  the  Lady  Glenorchy  but  an  estate  for  life,  with 
remainder,  &c. 


LEGG  V.  GOLDWIRE. 

[reported    CAS.    TEMP.    TALBOT,   20.] 

[Nov.  10th,  1736.]  °    . 

Rectification  or  Marriage  Settlement.]  —  When  a  Marriage  Set- 
tlement will  he  rectified  by  Marriage  Articles. 

N.  B.  By  Lord  Chancellor  Talbot. — ^Where  articles  are  entered 
into  before  marriage,  and  a  settlement  is  made  after  marriage  dif- 
ferent from  those  articles  (as  if  by  articles  the  estate  was  to 
be  in  strict  settlement,  and  *  by  the  settlement  the  husband  [  *  18  ] 
is  made  tenant  in  tail  whereby  he  hath  it  in  his  power  to 
bar  the  issue),  this  Court  will  set  up  the  articles  against  the  settle- 
ment; but  where  both  articles  and  settlement  are  j^i^^vious  to  the 
marriage,  at  a  time  when  all  parties  are  at  liberty,  the  settlement 
differing  fi-om  the  articles  will  be  taken  as  a  new  agreement  between 
them  and  shall  control  the  articles  [m).  And  although,  in  the  case 
of  West\.  Errissey  (n),  Mich.  1726,  in  the  Court  of  Exchequer,  and 

{m)  See,  however.  Bold  v.  Hutchinson.  5  De  G.  Mao.  t^c  G.  55S,  567 
(n)  2  P.  Wms.  349;  3  Bio.  P.  C.  :}27;  Collectanea,  Jur.  4fi:]. 

87 


*  19  LORD  GLENCRCHY  V.  BOSVILLE. 

afterwards  in  the  House  of  Lords,  in  1727,  the  articles  were  made 
to  control  the  settlement  made  before  marriage,  yet  that  resolution 
no  way  contradicts  the  general  rule;  for  in  that  case  the  settlement 
was  expressly  mentioned  to  be  made  in  pursuance  and  performance 
of  the  said  marriage  articles,  whereby  the  intent  appeared  to  be  still 
the  same  as  it  was  at  the  making  of  the  articles. 


''Lord  Glenorchy  v.  Bosville,  in  Lord  TalboVs  time,"  observes 
Lord  Hardivicke,  "has  established  the  distinction  between  trusts 
executed  and  executory:  "  Bagshaw  v.  Spencer,  2  Atk.  582:  His  Lord- 
ship, however,  in  the  same  case,  almost  denied  that  any  such  distinc- 
tion existed,  although  he  afterwards  fully  admitted  it  {Exel  v.  Wal- 
lace, 2  Ves,  323;  Bastard  v.  Prohy,  2  Cox,  8);  and  it  has  since  been 
recognized  by  a  long  series  of  decisions.  See  Austen  v.  Tai/lor,  1 
Eden,  367,  3G8;  Countess  of  Lincoln  v.  Duke  of  Newcastle,  12  Ves. 
227;  Jervoise  v.  Dake  of  Northumberland,  1  J.  &  W.  570;  Black- 
burn V.  Stables,  2Y.  &  B.  309;  Lord  Deerhurstv.  Duke  of  St.  Albans, 
5  Madd.  233;  S.  C,  nom.  Tollemache  v.  Coventry,  2  C.  &  F.  611; 
Douglas  v.  Cofigreve,  1  Beav.  59;  S.  C,  4  Bing.  N.  C.  1,  5  Bing.  N. 
C.  318;  Boswell  v.  Dillon,  1  Dru.  297.  See  also  Earl  of  Stamford 
V.  Sir  John  Hobart,  3  Bro.  P.  C.  33,  Toml.  ed. ;  Papillon  v.  Voice, 

2  P.  Wms.  471;  Dillon  v.  Blake,  16  Ir.  Ch.  Eep.  24;  2  Seton  on 
Decrees,  1235—1242,  4th  ed. 

[The  difference  between  executory  and  executed  trusts  is  now 
well  settled  both  in  England  and  the  United  States.  Dennison  v. 
Goehring,  7  Barr.  177;  Wood  v.  Burnham,  6  Paige,  518;  Garner  \. 
Garner,  1  Dessaus,  448;  Edmondson  v.  Dyson,  2  Kelly,  307;  Bei-ry 
v.  Williamson,  11  B.  Mont.  245;  Gushing  \.  Blake,  30  N.  J.  Eq.  689; 
Weehaivken  Ferry  Co.  v.  Sisson,  2  C.  E.  Green,  476;  MullonyY.  Id., 

3  Gr.  Ch.  16.] 

It  is  proposed  in  this  note  to  consider  the  distinction  between  trusts 
executed  and  executory,  and  the  consequences  which  result  there- 
from principally  with  reference  to  the  limitation  of  estates. 

A  trust  is  said  to  be  executed  when  no  act  is  necessary  to  be  done 
to  give  efiect  to  it,  the  limitation  being  originally  complete,  as  where 
an  estate  is  conveyed  or  devised  unto  and  to  the  use  of  A. 
[  *  19  ]   *  and  his  heirs  in'trust  for  B.  and  the  heirs  of  his  body. 

A  trust  is  said  to  be  executory  where  some  further  act  is  nec- 
essary to  be  done  by  the  author  of  the  trust  or  the  trustees,  to  give 
effect  to  it,  as  in  the  case  of  marriage  articles,  and  as  in  the  case  of 
a  will  where  property  is  vested  in  trustees  in  trust  to  settle  or  convey 
in  a  more  perfect  and  accurate  manner;  in  both  of  which  cases  a 
further  act,  viz.,  a  settlement  or  conveyance,  is  contemplated.  [The 
distinction  between  executed  and  executory  trusts,  depends  upon 
the  manner  in  which  the  trust  is  declared.     When  the  limitations 


LORD  GLENORCIIY  V.  BOSVILLE.  *  19 

are  fully  and  perfectly  declared  the  trust  is  regarded  as  an 
executed  trust.  It  is  only  where  the  limitations  are  imperfectly 
declared  and  the  intention  of  the  creator  is  expressed  in  general 
terms,  leaving  the  manner  in  which  his  intent  is  to  be  canned  into 
effect,  substanially  in  the  discretion  of  the  trustee,  that  a  Court  of 
equity  regards  the  trust  as  an  executory  one.  A  mere  direction  to 
the  trustee  to  convey,  will  convey  a  trust  into  an  executory  trust, 
see,  Gushing  v.  Blake,  8  Stewart  (N.  J.  Eq.),  G94;  Cushing  v, 
Slicrard,  5  Wallace,  2G8;  YarnelVs  Appeal,  20  P.  F.  Smith,  340; 
Neves  v.  Scott,  9  How.  211.] 

It  is  now  clearly  estal)lished,  as  laid  down  by  Lord  Talbot  in 
Lord  Glenorchij\.  j5osr//fc,thataCourtof  equity  in  cases  of  execn^ed 
/ru.s/.s  will  construe  the  limitations  in  the  same  manner  as  similar 
legal  limitations.  If,  for  instance,  an  estate  is  vested  in  trustees 
and  their  heirs  in  trust  for  A.  for  life,  Avithout  impeachment  of 
waste,  with  remainder  to  trustees  to  preserve  contingent  remainders, 
with  remainder  in  trust  for  the  heirs  of  A.'s  body,  the  trust  being 
an  executed  trust.  A.,  according  to  the  rule  in  Shelley's  Case  (1  Co. 
936,  L.  Cas.  K  P.  589,  3rd  Ed.),  which  is  a  rule  of  law,  will  be  held 
to  take  an  estate  tail.  Here  it  will  bo  observed  that  the  rule  pre- 
vails over  the  evident  intention,  that  A.  should  have  only  a  life 
interest,  evidenced  by  its  being  given  to  him  without  impeachment 
of  waste,  and  by  the  limitation  to  trustees  to  preserve  contingent 
remainders.  See  Wright  v.  Pearson,  1  Eden,  119;  Austen  v. 
Taylor,  1  Eden,  301;  Jmies  v.  Morgan,  1  Bro.  C.  C.  206;  Jervoise 
v.  Duke  of  Northumberland,  1  J.  &  W.  559;  clearly  overruling  the 
opinion  expressed  by  Lord  Hardivicke  in  BagsJtaw  v.  Spencer,  2 
Atk.  577,  when  he  erroneously  reversed  the  decision  of  Sir  Joseph 
Jekyll,  M.  Pt.     See  also  Bosivell  v.  Dillon,  1  Dru.  291. 

In  cases,  however,  of  execidory  trusts,  where,  according  to  Lord 
Talbofs  observation  in  Lord  Glenorchyy.  Bosvillc,  something  is  left 
to  be  done  viz.,  the  trusts  are  left  to  be  executed  in  a  more  careful 
and  more  accurate  manner,  a  Court  of  equity  is  not,  as  in  cases  of 
executed  trusts,  bound  to  construe  technical  expressions  with  legal 
strictness,  but  will  mould  the  trusts  according  to  the  intent  of  those 
who  create  them.  [  In  an  executed  trust  the  instrument  must  be 
interpreted  according  to  the  rules  of  law  although  by  such  an  in- 
terpretation the  intention  is  defeated.  If  an  estate  is  given  to  A. 
and  his  heirs  in  trust  for  B.  for  life  with  remainder  to  the  heirs  of 
B.  B.  will  take  an  estate  in  fee  according  to  the  rule  in  Sbelly's 
case,  but  if  the  instrument  was  intended  only  as  a  draft  of  a  scheme 
for  settling  as  estate  the  same  provision  would  be  construed  as  in- 
dicating an  intention  to  give  B.  a  life  estate  and  then  the  heirs 
would  take  by  purchase.  When  the  formal  instrument  comes  to  be 
drawn  the  Court  of  Chancery  will  see  that  a  settlement  is  made 
which  will  in  due  form  of  legal  conveyancing  carry  out  the  inten- 
tion of  the  creator  of  the  trust  and  B.  will  take  but  a  life  estate  and 
his  heirs  will  take  as  purchasers  in  remainder:     Porter  v.  Doby,   2 

89 


*20  LORD  GLENORCIIY  ^.  BOS VILLE. 

Eicb.  Eq.  49;  Bacons  Appeal,  7  P.  F.  Smith,  340;  Neves  v.  Scott, 
9  How.  211;   YarnalVs  Ajjpeal,  20  P.  F.  Smith,  340.] 

A  mere  direction,  howevei*,  to  convey,  upon  certain  trusts,  will  not 
render  those  trusts  executory,  in  the  sense  in  which  the  word  is  used 
in  this  note,  if  the  author  of  the  trust  has,  as  it  were,  taken  upon 
himself  to  be  his  own  conveyancer,  and  instead  of  leaving  anything  to 
be  done  beyond  the  mere  execution  of  a  conveyance,  has  defined  what 
the  trusts  or  limitations  are  to  be  in  accurate  and  technical  terms. 
"All  trusts,"  observes  Lord  »S'^.  Leonards,  "are  in  a  sense  executory, 
because  a  trust  cannot  be  executed  except  by  conveyance,  and 
[  "^'  20  ]  therefore  there  is  something  always  to  be  done.  *  But  that 
is  not  the  sense  which  a  court  of  equity  puts  upon  the  term 
'executory  trust.'  A  Court  of  equity  considers  an  executory  trust 
as  distinguished  from  a  trust  executing  itself,  and  distinguishes  the 
two  in  this  manner: — Has  the  testator  been  what  is  called,  and  very 
properly  called,  his  own  conveyancer?  Has  he  left  it  to  the  Court 
to  make  out,  from  general  expressions,  what  his  intention  is,  or  has 
he  so  defined  that  intention  that  you  have  nothing  to  do  but  to  take 
the  limitations  he  has  given  to  you,  and  to  convert  them  into  legal 
estates?"  Egerton  v.  Earl  of  Broivnloiv,  4  Ho.  L.  Cas.  210,  and 
see  lb.  pp.  49,  60,  61,  181,  "l88,  209;  Austen  v.  Tcujlor,  1  Eden, 
Eep.  361,  367,  868;  Wight  v.  Leigh,  15  Ves.  564,  568;  Graham  v. 
Stewart,  2  Macq.  Ho.  L.  Cas.  295,  325;  Herbert  v.  Blnnden,  1  Dru. 
&  Walsh,  78,  89,  91;  East  v.  Twi/ford,  9  Hare,  713,  733,  4  Ho.  L. 
Ca  517;  Doncaster  v.  Doncaster,  3  K..  &  J.  26;  Tathaniy.  Vernon, 
29  Beav.  604,  614;  Osborn  v.  Bellman,  2  Giff.  593;  Fullerton  v. 
Martin,  1  Drew.  &  Sm.  31;  De  Haviland  v.  De  Saumarez,  14  W. 
K.  (L.  J.)  118;  Lees  v.  Lees,  5  I.  K  £q.  549;  In  re  Whittles  Trust, 
9  I.  R.  Eq.  41;  Sackville-WestY.  Viscount  Hohnesdale,  4L.  R.  Ho. 
L.  Ca.  571;  Miles  \.  Harford,  12  Ch.  D.  691,699;  Shelley  y.  Shelley, 
6  L.  R.  Eq.  540.  \Tillinghast  v.  Coggeshall,  7  Rhode  Island,  383; 
Saunders  v.  Edtvards,  2  Jones,  Eq.  135.]  And  though  there  is  a 
direction  by  the  testator  to  the  trustees  to  correct  any  defect  or  in- 
correct expression  in  his  will,  and  to  form  a  settlement  from  what 
appears  to  them  to  be  his  meaning,  it  will  not  authorize  any  change 
in  the  limitations:   Stanley  v.  Stanley,  16  Yes.-  491,  511 

It  is  observed  by  Lord  Talbot,  in  Lord  Glenorchy  v.  Bosville,  that 
the  rule  is  not  generally  true,  that  in  articles  and  executory  trusts 
(meaning  executory  trusts  in  wills)  different  constructions  are  to 
be  admitted.  This  is  correct  with  the  qualification  or  distinction 
that,  in  executory  trusts  under  marriage  articles,  the  intention  of 
the  parties  may  fairly  be  presumed  a  priori  from  the  nature  of  the 
transaction;  in  executory  trusts  in  wiilc,  it  must  be  gathered  from 
the  words  of  the  will  alone.  Lord  Eldon  seems  to  have  denied  this 
distinction  in  Countess  of  Lincoln  v.  Duke  of  Neivcastle,  12  Ves. 
227,  230;  but  see  his  explanation  in  the  case  of  Jervoise  v.  Duke  of 
Northumberland,  1  J.  &  W.  574.  The  distinction  has  been  well 
put  by  Sir  William  Grant,  M.  R.,  in  Blackburn  v.  Stables,  2  Y.  & 
90 


LORD  GLENORCIIY  V-  BOSVILLE.  *  21 

B.  369.  [In  executory  trusts  created  by  will  there  is  no  presump- 
tion as  to  the  intention  of  the  testator.  Allen  v.  Henderson,  49  Pa. 
St.  333;  Bobertson  V.  Johnson,  30  Ala.  197;  McPliersimw.  Snoivden, 
19  Md.  197.]  "I  know,"  observes  his  Honor,  "of  no  difference 
between  an  executory  trust  in  marriage  articles  and  in  a  will,  except 
that  the  object  and  purpose  of  the  former  furnish  an  indication  of 
intention  which  must  bo  wanting  in  the  latter.  AVhen  the  object 
is  to  make  a  provision,  by  the  settlement  of  an  estate,  for  the 
issue  of  *  a  marriage,  it  is  not  to  be  presumed  that  the  parties  [  *  21  ] 
meant  to  put  it  in  the  power  of .  the  father  to  defeat  that 
purpose,  and  appropriate  the  estate  to  himself.  If,  therefore,  the 
agreement  is  to  limit  an  estate  for  life,  with  remainder  to  the  heirs 
of  the  body,  the  Court  decrees  a  strict  settlement  in  conformity  to 
the  presumal)lo  intention;  bat  if  a  will  directs  a  limitation  for  life, 
with  remainder  to  the  heirs  of  the  body,  the  Court  has  no  such 
ground  for  decreeing  a  strict  settlement.  A  testator  gives  arbitrarily 
what  estate  he  thinks  fit;  there  is  no  presumption  that  he  means 
one  quantity  of  interest  rather  than  another, — an  estate  for  life 
rather  than  in  tail  or  in  fee.  The  subject  being  mere  bounty,  the 
intended  extent  of  that  bounty  can  be  known  only  from  the  words 
in  which  it  is  given;  but,  if  it  is  cleai'ly  to  be  ascertained  from  any- 
thing in  the  will,  that  the  testator  did  not  mean  to  use  the  expres- 
sions which  he  has  employed,  in  their  strict,  proper  technical  sense, 
the  Court,  in  decreeing  such  settlement  as  he  has  directed,  will 
depart  from  his  words,  in  order  to  execute  his  intention."  See  also 
Lord  Deerhurst  v.  Duke  of  St.  Alban^s,  5  Madd.  260;  Magidre  v. 
Sciilhj,  2  Hog.  113;  Stratford  v.  Foicell,  1  Ball  &  B.  25;  Scarisbrick 
V.  Lord  Skelmersdale,  4  Y.  &  C.  Exc.  Ca.  117;  Cocqie  v.  Arnold,  4 
De  G.  M.  &  G.  585;  Sackville-West  v.  Viscount  Hohnesdale,  4  L. 
R.  Ho.  L.  543;  Viscount  Hohnesdale  v.  West,  3  L.  E.  Eq.  474; 
Magrath  v.  Morehead,  12  L.  R.  Eq.  491. 

In  consequence  of  the  distinction  adverted  to,  it  will  be  most  con- 
venient to  consider  executory  trusts  under  marriage  articles,  and 
executory  trusts  under  wills,  separately. 

1.  As  to  Execidory  Trusts  under  Marriage  Articles.] — If,  in  ar- 
ticles before  marriage,  for  making  a  settlement  of  the  real  estate  of 
either  the  intended  husband  or  wife,  it  is  agreed  that  the  same 
shall  be  settled  upon  the  heirs  of  the  body  or  the  issue  of  them  or 
either  of  them,  in  such  terms  as  would,  if  construed  with  legal 
strictness,  according  to  the  rule  in  Shellei/s  Case,  give  either  of 
them  an  estate  tail,  and  enable  either  of  them  to  defeat  the  provi- 
sion for  their  issue.  Courts  of  equity,  considering  the  object  of  the 
articles,  viz.  to  make  a  provision  for  the  issue  of  the  marriage,  will, 
in  conformity  with  the  presumed  intention  of  the  parties,  decree  a 
settlement  to  be  made  upon  the  husband  or  wife  for  life  only,  with 
remainder  to  the  issue  of  the  marriage  in  tail,  as  purchasers.  [A 
settlement  under  marriage  articles  will  be  made  according  to  the 

91 


*  23  LORD  GLENORCHY  V.  BOSVILLE. 

intentions  of  the  parties  if  possible,  Gause  v.  Hale,  2  Ired.  Eq. 
24] ;  Allen  v.  Rumph,  2  Hill  Eq.  1.]  Thus,  in  Trevor  v.  Tre- 
vor (1  Eq.  Ca.  Abr.  387;  S.  C,  1  P.  Wms.  622),  A.,  in  consid- 
eration   of    an    intended     marriage,    covenanted     with     trustees 

to  settle  an  estate  to  the  use  of  himself  for  life,  withoiit  im- 
[  *  22  ]  peachment  *  of  waste,  remainder  to  his  intended  wife  for 

life,  remainder  to  the  use  of  the  heirs  males  of  him  on  her 
body  to  be  begotten,  and  the  heirs  males  of  such  heirs  males  issu- 
ing, remainder  to  the  right  heirs  of  the  said  A.  for  ever.  Lord 
Macclesfield  said,  that  upon  articles  the  case  was  stronger  than  on 
a  will;  that  articles  were  only  minutes  or  heads  of  the  agreement 
of  the  parties,  and  ought  to  be  so  modelled,  when  they  came  to  be 
carried  into  execution,  as  to  make  them  effectual;  that  the  intention 
was  to  give  A.  only  an  estate  for  life;  that,  if  it  had  been  otherwise, 
the  settlement  would  have  been  vain  and  ineffectual,  and  it  would 
have  been  in  A.'s  power,  as  soon  as  the  articles  were  made,  to  have 
destroyed  them.  And  his  Lordship  therefore  held,  that  A.  was  en- 
titled to  an  estate  for  life  only,  and  that  his  eldest  son  took  by  pur- 
chase as  tenant  in  tail.  This  decision  was  affirmed  on  appeal  in 
the  House  of  Lords;  5  Bro.  P.  C,  Toml.  ed.,  122. 

In  Streat field  v.  Streat field,  Ca.  t.  Talb.  176  (selected  as  a  lead- 
ing case  on  another  point),  T.  S.,  by  articles,  agreed  to  settle  lands 
to  the  use  of  himself  and  M.  his  intended  wife,  for  their  lives  and 
the  life  of  the  survivor;  and  after  the  survivor's  decease,  to  the  use 
of  the  heirs  of  the  body  of  him  the  said  T.  S.,  on  his  wife  begotten, 
with  other  remainders  over.  After  marriage,  by  a  deed  reciting  the 
articles,  he  settled  the  lands  to  the  use  of  himself  and  his  wife  for 
their  lives  and  the  life  of  the  longest  liver  of  them,  without  im- 
peachment of  waste  during  the  life  of  T.  S. ;  and  after  their  decease, 
to  the  use  of  the  heirs  of  the  body  of  the  said  T.  S.  on  the  said  M. 
to  be  begotten;  and  for  want  of  such  issue,  to  the  right  heirs  of  T. 
S.  Lord  Talbot  held,  that  the  settlement  was  not  a  proper  execu- 
tion of  the  articles,  and  said  that  it  could  not  be  doubted,  but  that, 
upon  application  to  the  Court  for  carrying  the  articles  into  execu- 
tion, it  would  have  decreed  it  to  be  done  in  the  strictest  manner, 
and  would  never  leave  it  in  the  husband's  power  to  defeat  and  an- 
nul everything  he  had  been  doing;  and  that  the  nature  of  the  pro- 
vision was  strong  enough,  without  express  words.  See  also  Jones 
V.  Laughton,!  Eq.  Ca.  Abr.  392;  Cusack  v.  Cusack,  5  Bro.  P.  C, 
Toml.  ed.,  116;  Griffith  v.  Buckle,  2  Vern.  13;  Stonor  v.  Curicen,  5 
Sim.  268,  269;  Davies  v.  Davies,4,  Beav.  54;  Lambert  v.  Peyton,  8 
Ho.  L.  Ca.  1;  In  re  Griefs  estate,  6  I.  E.  Eq.  1;  S.  C.  nom.  Grier 
V.  Grier,  5  L.  B.  Ho.  Lo.  688. 

"Where  in  marriage  articles  the  words  "  heirs  of  the  body,"  or 
"  issue,"  are  held  to  indicate  an  intention  that  the  issue  of  the 
marriage  should  take  as  purchasers,  a  settlement  will  be  decreed  in 

favour  of  daughters  as  well  as  sons,  viz.  'in  first  and  other 
[  *  23  ]  sons  successively  in  tail,  with  remainder  ^  to  the  daughters 

92 


LORD  GLENORCHY  V.  BOSVILLE.  *  24 

as  tenants  in  common  in  tail,  with  cross  remainders  between  them: 
Nandick  v.  Wilkes,  Gilb.  Eq.  Rep.  114;  S.  C.  1  Eq.  Ca.  Abr.  893, 
c.  5;  Burton  v.  Hai^tingt^,  (iilb.  Eq.  Kep.  llo;  S.  C,  1  Eq.  Ca. 
Abr.  398;  Hart  v.  Middlehurst,  3  Atk.  371;  Mamjat  v.  Ton-nly,  1 
Vea.  105;  Maguire  v.  Scully,  2  Hog.  113;  S.  C,  1  Beat.  370;  Burn- 
ahy  V.  Grijjin,  3  Ves.  2(36;  Home  v.  Barton,  19  Ves.  398,  Coop.  257; 
S.  C,  on  an  application  for  a  rehearing,  20  L.  J.  N.  S.  (Cb.)  225; 
Phillips  V.  James,  2  D.  &  Sm.  404,  408,  3  De  G.  J.  &  Sm.  72;  in  re 
Grier's  estate,  G  I.  R.  Eq.  1,  U  ;  S.  C.  nom.  Grier  v.  Grier,  5  L.  R. 
Ho.  Lo.  088. 

In  Rossiter  v.  Rossiter,  14  Ir.  Ch.  Rep.  247,  the  hnsband  agreed 
to  convey  to  trustees  for  himself  for  life,  and  if  his  wife  survived, 
to  the  use  of  the  '"wife  and  children,"  if  no  child,  to  the  wife  in  fee. 
A  settlement  upon  the  wife  for  life  with  remainder  to  the  children, 
was  decreed,  Wildes  Case  (6  Co.  16)  being  held  inapplicable  to  mar- 
riage articles. 

Where  it  is  agreed  to  settle  real  estate  to  the  use  of  the  intended 
husband  for  life,  i-emaiuder  to  the  heirs  male  of  his  body,  remain- 
der to  the  heirs  female  of  his  body,  the  words  "heirs  female"  will 
be  held  to  mean  daughters  of  the  marriage,  and  a  settlement  will 
bo  made  upon  them  as  tenants  in  common  in  tail,  with  cross  remain- 
ders between  them:  West  v.  Errissey,  2  P.  Wms.  849,  Comyn's  Rep. 
412,  1  Bro.  P.  C,  Toml.  ed.,  225. 

A  limitation,  however,  to  the  heirs  of  the  body,  following  after 
a  remainder  to  the  first  and  other  sons  of  the  mari'iage  in  tail  male, 
and  a  remainder  to  heirs  male  generally,  will  not,  it  seems,  be  so 
construed  in  favour  of  the  daughters  of  the  marriage,  especially 
where  portions  are  by  the  articles  expressly  provided  for  them: 
Poii-eU  V.  Price,  2  P.  Wms.  535. 

The  principle  upon  which  Courts  of  equity,  in  such  cases  as  have 
been  considered,  decree  a  strict  settlement,  seems  to  be  this,  viz.  to 
give  effect  to  the  presumed  intention  of  the  parties  to  the  articles, 
to  make  such  a  provision  for  the  issue  of  the  marriage  as  it  would 
not  be  in  the  power  of  either  -piirent  to  defeat;  where,  however,  ar- 
ticles are  so  framed  that  the  concurrence  of  both  parents  is  requi- 
site, in  order  to  defeat  the  provision  for  the  issue,  the  same  princi- 
ple does  not  apply,  as  it  might  have  been  the  intention  of  the  par- 
ties to  the  articles,  that  the  husband  and  wife  should  jointly  have 
such  power.  Thus,  where  the  husband  has  by  articles  agreed  to 
settle  his  oivn  property  upon  himself  for  life,  remainder  to  his  wife 
for  life,  with  remainder  to  the  heirs  of  the  body  of  the  wife  by 
him,  as  she  would  in,  this  case  be  tenant  in  tail  exprovisione 
viri,  and  consequently  could  not,  by  *  reason  of  the  Statute  [  *  24  ] 
of  Jointures  (11  Hen.  7,  c.  20),  if  the  property  were  settled 
upon  her  previous  to  the  passing  of  the  Fines  and  Recoveries  Act 
(3  &  4  Will.  4,  c.  74),  bar  the  entail  without  the  concurrence  of  her 
husband,  a  settlement  making  the  issue  take  by  purchase  would  not 
be  decreed:  Whately  v.  Kemp,  cited  in  Hoiuel  v.  Hoicel,  2  Ves.  358; 

93 


*  25  LORD  GLENORCHY  V.  BOSVILLE. 

Honor  v.  Honor,  1  P.  Wms.  123,  Green  v.  Ekins,  2  Atk.  477:  High- 
ivay  V.  Banner,  1  Bro.  C.  C.  584;  *SacA;^J^7Ze-TFes^  v.  Viscount  Holmes- 
dale,  4  L.  R.  Ho.  Lo.  554.  As,  however,  the  statute  11  Hen.  7,  c. 
20,  has  been  repealed  as  to  estates  tail  ex  provisione  viri  by  3  &■  4 
Will.  4,  c.  74,  s.  16,  this  exception  from  the  general  rule  will  cease 
to  be  part  of  the  law:  Rochfordy.  Fitzmaurice,  2  D.  &  W.  19. 

So,  also,  where  it  appears  on  the  face  of  the  articles  that  the 
parties  themselves  knew  and  made  a  distinction  between  limitations 
in  strict  settlement,  and  limitations  leaving  it  in  the  power  of  one 
of  the  parents  to  bar  the  issue,  a  strict  settlement  will  not  be  de- 
creed. Thus,  where  by  articles  part  of  an  estate  was  limited  to  the 
husband  for  life,  remainder  to  the  wife  for  life,  remainder  to  the 
first  and  every  other  son  and  daughter  in  tail,  and  another  part  to 
the  husband  for  life  and  the  heirs  male  of  his  body  by  that  wife, 
Lord  Macclesfield  said,  that  if  the  latter  had  been  the  sole  limita- 
tion, he  should  without  scruple  decree  in  strict  settlement,  accord- 
ing to  the  common  rule;  but  where  the  parties  had  shown  they 
knew  the  distinction  when  to  put  it  out  of  the  power  of  the  father, 
and  when  to  leave  it  in  his  power,  he  would  not  vary  the  last  limi- 
tation decreeing  to  the  father  in  tail  as  to  the  last,  though  not  as 
to  the  first:  Anon.,  cited  2  Ves.  359;  Howel  v.  Hotvel,  2  Ves.  358; 
Poivell  V.  Price,  2  P.  Wms.  535;  Chambers  v.  Chambers,  Fitzg.  Rep. 
127;  S.  C,  Mos.  333,  2  Eq.  Ca.  Abr.  35,  c.  4;  Highway  v.  Banner, 
1  Bro.  C.  C,  584. 

Where  words  in  articles  for  a  settlement  would,  if  interpreted  in 
their  strict  legal  sense,  create  a  joint-tenancy  among  the  children 
of  the  marriage,  equity  will  decree  a  settlement  upon  them  as  ten- 
ants in  common,  either  with  provisions  for  limiting  over  the  shares 
of  any  who  died  under  age  and  without  issue  ( Taggart  v.  Taggari, 
1  S.  &  L  89),  or  for  making  the  interests  of  the  children  contingent 
on  their  attaining  twenty-one  being  sons,  or  being  daughters  attain- 
ing that  age  or  marrying:  Young  v.  Macintosh,  13  Sim.  445;  Cogan 
V.  Diiffield,  2  Ch.  D.  44,  50.  The  reason  given  by  Lord  Redesdale 
for  preferring  a  tenancy  in  common  is  that  a  joint  tenancy  as  a  pro- 
vision for  the  children  of  a  marriage  is  an  inconvenient  mode  of 
settlement,  because  during  their  minorities  no  use  can  be  made  of 
their  portions  for  their  advancement,  as  the  joint-tenancy 
[*  25]  cannot  *  be  severed:  Taggart  v.  Taggart,  1  S.  &  L.  88. 
See  also  Mayn  v.  Mayn,  5  L.  R.  Eq.  150;  Liddard  v.  Lid- 
dard,  28  Beav.  266.  The  rule  was  not  departed  from  in  In  re  Bel- 
lasis' Trust,  12  L.  R.  Eq.  218,  as  the  trust  there,  though  informal, 
appears  to  have  been  treated  by  the  learned  judge  as  executed,  and 
not  executory,  as  it  is  stated  to  be  in  the  head  note. 

When  articles  direct  personal  jyrojierty  of  the  wife  to  be  settled 
upon  trust  for  the  husband  and  wile  "  during  their  lives,"  they 
will  be  carried  into  effect  by  giving  the  wife  the  first  life  interest  td 
her  separate  use:    Cogan  v.  Diiffield,  20  L.  R.  Eq.  789,  2  Ch.  D.  44. 

Although  provisions  in  marriage  articles  may  be  vague,  the  Court 
94 


LOKD  GLENORCHY  V.  BOSVILLE.  *  20 

will  endeavour  to  carry  them  out  as  well  as  it  can.  Thus  where  in 
marriage  articles  there  was  a  trust  "  to  ])rovide  suitably  "  for  the 
settlor  s  younger  children,  it  was  held  in  a  case  in  Irelard,  that  it 
was  not  too  vague  to  be  executed,  and  that  the  Court  ought  to 
direct  an  inquiry  what  the  provisions  should  be:  Brenan  v.  Brenan, 
2  Ir.  R.  Eq.  26(1  [A  chancellor  in  decreeing  a  settlement  in  con- 
formity with  marriage  articles  will  take  care  that  the  issue  are  pro- 
vided for:  Bispham's  Equity,  sec.  57.] 

A  very  good  example  of  the  mode  in  which  the  Court  will  carry 
out  informal  marriage  articles  of  the  intended  wife's  personal 
property  is  to  be  found  in  Cogau  v.  Dujjield,  2  Ch.  D.  44. 

And  it  has  been  laid  down  that  executory  trusts  in  postnuptial 
settlements  will  receive  the  same  construction  as  executory  trusts 
in  ivills:    Rochford  v.  Fitzmaurice,  1  C.  &  L.  158,  172,  173. 

Where,  by  a  postnuptial  agreement,  a  settlement  was  directed  to 
be  made  upon  a  son  of  the  marriage  and  his  issue,  it  was  held  that 
the  same  considerations  did  not  apply  as  in  the  case  of  a  similar 
limitation  to  an  intended  husband  and  his  issue  by  articles  before 
marriage,  so  as  to  cut  down  the  interest  of  the  son  to  a  life  interest. 
See  Dillon  v.  Blake,  10  Ir.  Ch.  Hep.  24;  there  by  executory  aritcles 
for  valuable  consideration,  made  between  H.  Blake  and  his  Avife 
and  sons,  it  was  agreed  that  after  the  death  of  H.  Blake,  his  estates 
should  be  limited  to  and  settled  upon  B.,  his  eldest  son  and  his 
issue,  with  remainder,  in  the  evetit  of  B.  dying  in  the  lifetime  of  H. 
Blake,  without  lawful  issue,  to  each  of  the  other  sons  of  H.  Blake, 
in  succession,  according  to  their  seniority,  with  an  ultimate  remain- 
der to  the  right  heirs  of  H.  Blake.  And  power  was  given  to  tho 
trustees  to  lease  any  part  of  tho  lands,  with  the  concurrence  of  H. 
Blake.  B.  survived  H.  Blake,  and  had  issue.  It  was  held  by  the 
Lord  Chancellor  of  Ireland  ( Blackburne) ,  in  a  suit  to  carry  these 
articles  into  execution,  that  B.  was  entitled  to  an  estate  tail  in  pos- 
session, with  remainder  to  him  in  fee. 

Covenants  to  settle  chattels  on  the  same  tmsts  as 
realty.  ]  — Where  chattels  are  settled  immediately  *  or  by  [  *  26  ] 
a  trust  executed  upon  the  same  trusts  as  have  been  de- 
clared of  real  estate  in  strict  settlement,  viz.,  upon  first  and  other 
sons  successively  in  tail,  if  there  is  no  restriction  as  to  the  attain- 
ment of  twenty-one  years  or  the  fulfilment  of  any  other  condition, 
such  chattels  will  vest  absolutely  in  the  first  tenant  in  tail  at  his 
birth  whether  the  limitation  of  tho  chattels  be  expressed  in  cxtenso, 
or  created  by  reference  to  the  limitations  of  the  realty  (Doncaster  v. 
Doncaster,  3  K.  &  J.  26),  and  such  reference  may  be  effectually 
made  either  by  declaring  that  tho  chattels  are  to  go  upon  the  limi- 
tations of  the  realty  or  by  saying  that  they  are  to  be  treated  as 
heirlooms:  Lord  Scarsdalev.  Curzon,  1  J.  &  H  40.  See  In  re  John- 
son's Trusts,  2  L.  R.  Eq.  716. 

This  result  is  prevented  in  well -drawn  settlements  by  a  clause  in 
clear  words  suspending  the  vesting  of  the  chattels  in  the  first  ten- 

95 


*  2?  LORD  GLENORCHY  V.  BOSVILLE. 

ant  in  tail  "  unless  he  should  attain  the  age  of  twenty -one  years," 
or  "  unless  he  should  die  under  twenty-one  years  leaving  issue." 
And  see  forms  suggested  in  Davidson,  3rd  Ed.  vol.  iii.  p.  566,  with 
reference  to  Gosling  v.  Gosling,  1  De  G.  J.  &  S.  1;  S.  C.  nom. 
Christie  v.  Gosling,  1  L.  R.  Ho.  Lo.  279. 

The  best  form,  for  preventing  the  separation  of  the  chattels  and 
the  freeholds  is  a  declaration  that  such  chattels  shall  not  vest  abso- 
lutely in  any  tenant-in-tail  hy  purchase,  who  may  die  under  twenty- 
one,  but  shall  at  his  death  devolve  as  nearly  as  possible  in  the  same 
manner  as  the  freeholds:  Davidson,  vol.  i.  pp.  401,  464,  3rd  Ed. 

In  cases,  however,  of  executed  trusts,  doubtful  words  tending  to 
restrict  the  interests  of  chattels  to  those  who  come  into  the  posses- 
sion of  the  realty,  will  not  overrule  the  operation  of  the  general 
canons  of  construction,  nor  suspend  the  interest  until  possession  of 
the  realty  is  acquired:  Lord  Scarsdale  v.  Curzon,  1  J.  &  H.  40;  John- 
sort's  Trusts,  2,  L.  R.'  Eq.  716. 

In  the  case  of  an  executory  trust  by  settloment,  as  where  a  person 
has  agreed  or  covenanted  to  settle  chattels  upon  similar  trusts  to 
real  estate  in  strict  settlement,  a  Court  of  equity,  upon  the  prin- 
ciple of  carrying  into  efPect  the  intent  of  the  parties  as  far  as  pos- 
sible, will  order  a  clause  to  be  inserted  in  the  settlement  of  the 
chattels — that  the  tenant  in  tail  should  not  under  the  limitations  be 
entitled  to  the  absolute  property  in  the  chattels  "  unless  he  should 
attain  the  age  of  twenty- one  years,"  or  "  unless  he  should  die  under 
twenty-one,  leaving  issue."  See  Duke  of  Neiccastle  v.  Countess  of 
Lincoln,  3  Ves.  387,  in  which  case  there  was  a  covenant  in  a  mar- 
riage settlement  to  settle  leaseholds  in  trast  for  such  persons  and 
for  such  or  the  like  ends,  intents,  and  purposes,  as  far  as  the  law  in 
that  case  ivoulcl  allow  and  permit,  as  were  declared 
[  *  27  ]  *  concerning  certain  real  estates  which  were  limited  to  A. 
for  life,  remainder  to  his  first  and  other  sons  in  tail  male, 
remainder  to  B.  for  life,  remainder  to  B.'s  first  and  other  sons  in 
tale  male,  remainders  over.  A.  died,  leaving  a  son  who  lived  only 
nine  months.  Ijord  Loughborough  stated  it  to  be  his  decided  opin- 
ion, that  in  cases  of  marriage  articles,  where  leasehold  property  was 
covenanted  to  be  settled  upon  the  same  limitations  as  freehold  es- 
tate and  the  limitations  of  the  freehold  estate  were  to  all  the  sons 
successively  in  tail,  the  settlement  to  be  made  of  the  leaseholds 
ought  to  be  analogous  to  that  of  the  freeholds,  so  that  no  child  born 
and  not  attaining  twenty-one  should  by  his  birth  attain  a  vested  in- 
terest to  transmit  to  his  representatives,  and  thereby  defeat  the 
ulterior  object  of  the  articles,  which  were  not  in  favour  of  one  son, 
but  equally  extended  to  every  son;  and  his  Lordship  (admitting  the 
law  as  laid  down  in  Vaughan  v.  Burslem,  8  Bro.  C.  C.  101,  to  be 
applicable  to  wills)  observed  that  "it  is  not  true  that  you  are  to  do 
for  the  testator  all  that  can  be  done  by  law.  You  are  to  do  for  the 
testator  no  more  than  what  he  has  intended  to  be  done,  and  accord- 
ing to  the  common  acceptation  of  the  words  But,"  said  his  Lord- 
96 


LORD  GLENOIICIIY  V.  BOSVILLE.  *  28 

ship,  "I  wish  to  put  it  to  yon,  whotber  in  the  nature  of  things  there 
is  not  a  radical  and  essential  ditt'erenco  between  marriage  settle- 
ments and  wills  ?  The  parties  contract  upon  a  settlement  for  all 
the  remainders.  They  are  not  voluntary,  but  within  the  considera- 
tion. The  issue,  then,  are  all  purchasers.  Suppose,  then,  a  settle- 
ment to  be  made  of  freehold  estate,  and  as  to  the  leasehold  there 
is  only  this  article,  that  the  settlement  shall  be  analogous  to  that 
of  the  freehold;  do  I  execute  it  and  make  a  like  settlement  by  giv- 
ing an  interest  which  cuts  off  all  the  issue  ?  Suppose  the  whole 
subject  was  leasehold  estate,  and  stood  upon  an  article  that  it  should 
be  conveyed  according  to  the  limitations  of  an  honour,  and  a  bill  was 
brought  to  carry  that  settlement  into  effect  after  a  child  had  lived  a 
day,  should  I  permit  the  father  to  say  it  was  his  propei-ty?  It  is 
utterly  impossible  to  make  the  identical  settlement  of  the  leasehold 
estate  as  of  the  freehold;  but  if  I  am  to  make  it  by  analogy  to  the 
settlement  of  the  freehold,  shall  I  not  carry  it  on  to  all  the  near 
events?  and  shall  they  fail  because  I  cannot  embrace  all  the  remote 
events  ?"  And  his  Lordship  thought  there  was  no  ol)jection  to  a 
proviso  that  no  person  should  be  entitled  to  the  absolute  property 
unless  he  should  attain  the  age  of  twenty-one  years  or  die  under 
that  age  leaving  issue  male.  Upon  an  appeal  to  the  House  of  Lords 
(reported  1 2  Ves.  218),  a  son  of  B.'s  having  in  the  meantime  at- 
tained his  majority,  it  was  decreed  that  the  leasehold  estate 
*  vested  absolutely  in  him;  Lord  Ellenhorough  and  Lord  [  *  28  ] 
Erskine,  then  Lord  Chancellor,  to  this  extent  approving  of 
the  decree  of  Lord  Loughborough,  that  the  absolute  interest  did  not 
vest  in  the  first  tenant  in  tail,  A.'s  son,  on  his  birth;  but  it  was  un- 
necessary to  decide  what  was  the  proper  limitation  to  have  been  in- 
serted in  the  settlement,  whether  a  limitation  over  on  "  dying  under 
twenty- one,"  or  on  "  dying  under  twenty-one  without  issue  male." 
Lord  EldoH,  however,  denying  the  distinction  between  wills  and 
marriage  articles,  expressed  some  dissatisfaction  with  the  decree, 
and  stated  that  he  could  not  reconcile  the  decision  with  Vaughan  v. 
Burslem  (3  Bro.  C.  C.  101)  and  Foley  v.  Burnell(l  Bro.  C.  C.  274), 
decided  by  Lord  Thurloio,  although  he  did  not  move  an  amend- 
ment. The  cases,  however,  of  Vaughan  v.  Burslem  and  Foley  v. 
Burnell  are  cases  of  wills;  and  Lord  Eldon  himself  afterwards,  in 
Jervoise  v.  Duke  of  Nortlmmberland,  fully  admitted  the  distinction 
between  executory  trusts  in  marriage  articles  and  wills:  see  1  J.  & 
"VV.  574;  Scarsdale  v.  Curzon,  1  J.  &  H.  51,  54;  Sackville-Wcst  v. 
Viscount  Holmesdale,  4  L.  R.  Ho.  Lo.  543. 

It  may  be  here  mentioned,  that  although,  properly  speaking,  a 
marriage  settlement  ought  to  be  executed,  in  order  to  carry  the  ex- 
ecutory provisions  of  marriage  articles  into  effect,  the  Court  has, 
where  the  property  was  personal,  at  the  request  of  the  parties,  in 
order  to  save  expense,  made  a  declaration  as  to  the  true  meaning 
of  the  articles,  upon  which  the  parties  were  able  to  act,  without 
causing  a  formal  intrument  to  be  prepared  and  executed  :  Byam  v. 

T  WHITE   OX    EQUITY.  97 


*  29  LORD  GLENORCIIY  V.  BOSVILLE. 

Byam,  19  Beav.  58,  63.     But  tho  judgment  should  be  stamped,  post, 
p.  37. 

2.  As  to  Executory  Trusts  in  Wills.^ — The  intention  of  the  testa- 
tor must  appear  from  the  will  itself,  that  he  meant  "heirs  of  the 
body,"  or  words  of  similar  legal  import,  to  be  words  of  purchase  : 
otherwise  Courts  of  equity  will  direct  a  settlement  to  be  made  ac- 
cording to  the  strict  legal  construction  of  those  words.  Suppose, 
for  instance,  a  devise  to  trustees  in  trust  to  convey  to  A.  for  life, 
and  after  his  decease  to  the  heirs  of  his  body  or  words  equivalent 
to  heirs  of  the  body  ;  or  a  devise  in  trust  for  A.,  with  a  direction  to 
make  a  proper  entail  to  the  heir  male  by  him  ;  as  no  indication  of 
intention  appears  that  the  issue  of  A.  should  take  as  purchasers, 
the  rule  of  law  will  prevail,  and  A.  will  take  an  estate  tail,  although, 
as  we  have  already  seen  in  the  case  of  marriage  articles  similarly 
worded,  he  would  take  only  as  tenant  for  life.  Thus,  in  Siveetapple 
V.  Bindon,  2  Vern.  536,  B.  by  will  gave  300Z.  to  her  daughter  Mary, 
to  be  laid  out  by  her  executrix  in  lands  and  settled  to  the  only 
[  *  29]  use  of  her  daughter  Mary  and  her  children,  and  if  she  *  died 
without  issue  the  land  to  be  equally  divided  between  her 
brothers  and  sisters  then  living  ;  Lord  Cowper  said,  that,  had  it 
been  an  immediate  devise  of  land,  Mary,  the  daughter,  would  have 
been,  by  the  words  of  the  will,  tenant  in  tail  :  and  in  the  case  of  a 
voluntary  devise,  tho  Court  must  take  it  as  they  found  it,  and  not 
lessen  the  estate  or  benefit  of  the  legatee  :  although  upon  the  like 
words  in  marriage  articles  it  might  bo  otherwise.  See, also  Legatt 
V.  Sewell,  2  Vern.  551  ;  Seale  v.  Seals,  1  P.  AVms.  290  ;  Samuel  v. 
Samuel,  14  L.  J.  Ch.  222  ;  9  Jur.  222  ;  Harrison  v.  Naylor,  2  Cox, 
247  ;  Marshall  v.  Bousfield,  2  Madd.  166  ;  Blackburn  v.  Stables, 
2  V.  &  B.  370  ;  Meure  v.  Meure,  2  Atk.  266  ;  Jervoise  v.  Duke  of 
Northumberland,  1  J.  &  W.  559  ;  Randall  v.  Daniel,  24  Beav.  193  ; 
Loicry  v.  Loicry,  13  L.  R.  I.  317, 

In  the  following  cases,  however,  it  has  been  held  that  there  has 
been  a  sufficient  indication  of  the  testator's  intention,  that  the  words 
"heirs  of  the  body,"  or  words  of  similar  import,  should  be  consid- 
ered as  words  of  purchase  and  not  of  limitation,  viz.,  where  trustees 
were  directed  to  settle  an  estate  upon  A.  and  the  heirs  of  his  body 
taking  special  care  in  such  settlement  that  it  should  not  be  in  the 
power  of  A.  to  dock  the  entail  of  the  estate  given  to  him  during  his 
life:  Leonard  v.  Earl  of  Sussex,  2  Vern.  526. 

So  in  Thompson  v.  Fisher,  10  L.  R.  Eq.  207,  a  testator  subject  to 
the  life  interest  of  his  widow,  devised  freehold  property  to  trustees 
"upon  trust  to  convey,  assign  and  assure"  the  same  "unto  and  to 
the  use  of  his  son  T.  Fisher,  and  the  heirs  of  his  body  lawfully 
issuing,  but  in  such  manner  and  form  nevertheless,  and  subject  to 
such  limitations  and  restrictions,  as  that  if  T.  Fisher  shall  happen 
to  die  u'ithoid  leaving  lairful  issue,  then  that  the  property  may 
after  his  death  descend  unincumbered  unto  and  belong  to  his  daugh- 

98 


LORD  GLENORCIIY  V.  DOSVILLE.  *  30 

ter,  Ruth  Fisher,  her  heirs,  executors,  administrators,  and  assigns." 
Sir  W.  M.  James,  V.-C,  held  that  the  devise  was  an  executory  trust 
to  be  executed  by  a  conveyance  to  the  use  of  T.  Fisher  during  his 
life,  with  the  remainder  to  his  first  and  other  sons  and  daughters  as 
purchasers  in  tail,  with  remainder  to  the  testator's  daughter  lluth 
in  fee.     See  also  Shelton  v.  Watson,  10  Sim.  548. 

So,  directions  in  a  will  that  heirs  of  the  body  or  issue  shall  take, 
"in  succession  and  pi'iorily  of  birth,"  or  that  the  settlement  shall  be 
made  "as  counsel  shall  advise"  or  ^'as  executors  shall  think  fiV^ 
have  been  helcj.  strongly  to  indicate  an  intention  that  an  estate  should 
be  settled  strictly:  see  White  \.  Carter,  2  Eden,  368;  Bastard  \. 
Prolnj,  2  Cox,  6;  Rochford  v.  Fitzmaurice,  2D.  &  W.  1;  Read  v. 
Snell,  2  Atk.  642;  Haddelsey  v.  Adams,  22  I^eav.  276. 

*  So,  where  a  testator  directed  trustees  to  convey  an  estate  [  *  30  ] 
to  his  daughter  for  her  life,  and  so  as  she  alone,  or  such 
other  person  as  she  should  appoint,  should  take  or  receive  the  rents 
and  profits  thereof,  and  so  that  her  husband  should  not  intermed- 
dle therewith,  and  from  and  after  her  decease  in  trust  for  the  heirs 
of  her  body  for  ever;  Lord  Hardwicke,  considering  that  it  was 
plainly  the  intention  of  the  testator  that  the  husband  should  have 
no  manner  of  benefit  from  the  estate,  either  in  the  lifetime  of  his 
wife  or  after  her  decease,  held,  that  the  words  "heirs  of  her  body" 
were  words  of  purchase,  and  that  the  wife  was  entitled  to  a  life 
estate  only;  for  had  they  been  construed  as  Avords  of  limitation,  and 
the  wife  had  taken  as  tenant  in  tail,  the  husband,  contrary  to  the 
intention  of  the  testator,  would  have  had  considerable  benefit  from 
the  estate  as  tenant  by  the  curtesy;  Roberts  v.  Dixwell,  1  Atk.  607; 
S.  C  ,  West's  Kep.  temp.  Lord  Hardwicke,  536;  see  also  ;S^o??07' v. 
Cuncen,  5  Sim.  •^M•,  Parker  v.  Bolton,  5  L.  J.  N.  S.  (Ch.)  98;  Earl 
of  Verulam  \.  Bathurst,  13  Sim.  386;  Shelton  \.  Watson,  16  Sim. 
543;  sed  vide  Samuel  v.  Samuel,  14  L.  J.  N.  S.  (Ch. )  222;  Young 
V.  Macintosh,  13  Sim.  445;  Head  v.  Randall,  2  Y.  &  C.  C.  C.  231; 
Coape  v.  Arnold,  2  Sm.  and  G.  311,  4  De  G.  Mac.  &  G.  574. 

Where  a  testator,  as  in  Lord  Glenorchy  v.  Bosivell,  directs  an  es- 
tate to  be  conveyed  to  a  person  for  life  ^'■icithoid  impeachment  of 
iraste,"  or  to  a  person  for  life  with  a  limitation  to  trustees  "/o  pre- 
scrve  contingent  remainders,"  he  will  be  held  sufficiently  to  have 
indicated  his  intention,  that  in  a  subsequent  limitation  to  the  issue 
or  heirs  of  the  body  of  the  person  to  whom  the  life  interest  is  given, 
such  issue  or  heirs  should  take  as  purchasers,  and  a  strict  settle- 
ment will  accordingly  be  directed:  see  Pajyillon  v.  Voice,  2  P.  Wms. 
471,  in  which  case  the  distinction  between  executed  and  executory 
trusts  in  wills  is  most  strikingly  illustrated.  There  A.  bequeathed 
a  sum  of  money  to  trustees,  in  trust,  to  be  laid  out  in  a  purchase 
of  lands  and  to  be  settled  on  B.  for  life,  without  impeachment  of 
tvaste,  remainder  to  trustees  and  their  heirs  during  the  life  of 
B.  to  preserve  contingent  remainders,  remainder  to  the  heirs 
of  the  body  of  B.,  remainder  over,  with  power  to  B.  to  make  a 

99 


*  31  LORD  GLENORCHY  V.  BOSVILLE. 

jointure;  and  by  the  same  will  A.  devised  lands  to  B.,  for  his  life, 
ivithout  impeachment  of  icaste,  remainder  to  trastees  and  their  heirs 
durincr  the  life  of  B.  to  support  contingent  remainders,  remainder 
to  the  heirs  of  the  body  of  B.,  remainder  over:  though  it  was  de- 
creed at  the  Rolls  that  an  estate  for  life  only  passed  to  B.,-with  re- 
mainder to  the  heirs  of  his  body  by  purchase  as  well  in  the  lands 
devised  as  in  those  directed  to  be  purchased,  yet  upon  an 
[  *  31  ]  appeal  from  this  decree  Lord  *  Chancellor  King  declared 
as  to  that  part  of  the  case  where  lands  were  devised  to  B. 
for  life,  though  said  to  be  without  impeachment  of  waste,  with  re- 
mainder to  trustees  to  support  contingent  remainders,remainder  to  the 
heirs  of  the  body  of  B.,  this  last  remainder  was  within  the  general  rule, 
and  must  operate  as  words  of  limitation,  and  consequently  create  a 
vested  estate  tail  in  B.,  and  that  the  breaking  into  this  rule  would 
occasion  the  utmost  uncertainly';  but  as  to  the  other  point  he  de- 
clared the  Court  had  a  power  over  the  money  directed  by  the  will  to 
be  invested  in  land,  and  that  the  diversity  was  where  the  will  passed 
a  legal  estate  and  where  it  was  only  executory,  and  the  party  must 
come  to  the  Court  in  order  to  have  the  benefit  of  the  will;  that  in 
the  latter  case  the  intention  should  take  place  and  not  the  rules  of 
law,  so  that  as  to  the  lands  to  be  purchased  they  should  be  limited 
to  B.  for  life,  with  power  to  B.  to  make  a  jointure,  remainder  to 
trustees  during  his  life  to  preserve  contingent  remainders,  remain- 
der to  his  first  and  every  other  son  in  tail  male  successively, 
remainder  over:  Venables  v.  Morris,  7  T.  R.  342;  Doe  v.  Hicks,  7 
T.  R.  433. 

So,  where  a  testator  directed  his  estates  and  house  property  to 
be  settled  on  his  son,  T.  F.  D.,  and  his  heirs  male;  and  if  he  should 
have  no  heirs  male,  on  his  grandson,  J.  B.,  on  his  taking  the  name 
of  D.  in  addition  to  his  own,  within  twelve  months  after  his  succes- 
sion; and  in  the  event  of  his  having  no  heirs  male,  then  the  estate 
to  go  to  his  brother,  G.  A.  B  ,  and  his  heirs  male,  he  taking  the 
name  of  D. ;  it  was  held  by  the  Master  of  the  Rolls  of  Ireland  that 
an  executory  trust  was  created  which  the  Court  directed  to  be  car- 
ried out  by  a  settlement  with  limitations  to  the  several  devisees  for 
life,  and  with  remainders  to  their  sons  in  tail  male  successively: 
Duncan  v.  Bluett,  4  Ir.  Eq.  469;  see  also  Parker  v.  Bolton,  5  L.  J. 
(N.  S.)Ch.  98. 

AY  here,  however,  the  trusts  and  limitations  of  land  to  be  purchased 
by  trustees  are  expressly  declared  by  the  testator,  that  is  to  say, 
■  where  the  testator  has  been,  what  is  called  his  own  conveyancer,  it 
has  been  decided  that  the  Court  has  no  authority  to  make  them 
different  from  what  they  would  be  at  law.  Thus,  in  Austen  v. 
Taylor,  1  Eden,  361,  land  was  devised  to  trustees  in  trust  to  pay 
an  annuity;  and  subject  thereto  in  trust  for  A.  for  life,  without  im- 
peachment of  waste,  remainder  to  trustees  to  preserve  contingent 
remainders,  remainder  to  the  heirs  of  the  body  of  A.,  remainder  to 
the  testator's  right  heirs;  and  the  residue  of  the  testator's  personal 

100 


LORD  GLENORCHY  V.  BOSVILLE.  *  33 

f 

estate  was  to  be  laid  out  in  the  purchase  of  lands  which  should 
thereafter  remain,  continue,  and  be,  to,  for,  and  upon  such 
and  the  *like  estate  or  estates,  uses,  trusts,  intents,  and  p,ur-  [*32] 
poses,  and  under  and  subject  to  the  like  charges,  restrictions, 
and  limitations,  as  were  by  him  before  devised,  limited,  and  de- 
clared of  and  concerning  his  lands  and  premises  last  before  devised, 
or  as  near  thereto  as  might  bo,  and  the  deaths  of  persons  would 
admit.  Lord  Norfldngton  distinguished  the  case  from  Papillon  v. 
Voice,  on  the  ground  that  the  testator  refers  no  settlement  to  his 
trustees  to  complete,  but  declares  his  own  uses  and  trusts,  which 
being  declared,  ho  knew  no  instance  where  the  Court  had  proceeded 
80  far  as  to  alter  or  change  them;  and  he  therefore  held  that  A. 
was  entitled  to  an  estate  tail  in  the  lands  to  be  purchased;  and  see 
East  V.  Twyford,  9  Hare,  713,  783,  4  Ho.  Lo.  517;  Franks  \.  Price, 
3Beav.  1^2;  Rochford  v.  Fitzmaurice,  1  C.  &  L.  172,  2  Dru.  & 
Warr.  21;  Doncaster  v.  Doncaster,  3  K.  &  J.  20.  See,  however, 
Meure  v.  Meiire,  2  Atk.  265;  Harrison  v.  Naylor,  2  Cox,  247;  Green 
V.  Stephens,  17  Ves.  7();  Jervoise  v.  Duke  of  Northumberland,  1  J. 
&  W.  572;  In  re  Nelleifs  Tnists,  W.  N.,  1877,  p.  120;  20  W.  R. 
88. 

The  word  "issue"  as  observed  by  Lord  Talbot  in  Lord  Glenorchy 
v.   Bosville,  is  both  a  word  of  purchase  and  of  limitation ;  but  the 
word  "heirs"  is  naturally  a  word  of  limitation.     In  executory  trusts 
in  wills,  therefore,  it  will  be  seen,  upon  examining  the  cases,  that 
where  the  word  "issue"  is  made  use  of,  Courts  of  equity  will  more 
readily  decree  a  strict  settlement,  than  where  the  words  "heirs  of 
the  body"  have  been  used.     See  Meure  v.  Meure,  2  Atk.  205;  Ash- 
ton  V.   Ashton   (cited  in  Bagshaic  v.  Spencer,)  1   Coll.  Jur.    402 
Home  V.   Barton,  Coop.    257;  Dodson  v.  Hay,  3  Bro.    C.   C.  405 
Stonor  V.   Cunven,  5  Sim.   264;  Crozier  v.  Crozier,  2  C.  &  L.  311 
Haddelsey  v.  Adams,  22  Beav.  266. 

"Wherever  in  executory  trusts,  in  wills,  the  words  "heirs  of  the 
body"  or  "issue,"  are  construed  as  words  of  purchase,  they  will  be 
held  to  include  daughters  as  well  as  sons,  and  the  settlement,  as  in 
Lord  Glenorchy  v.  Bosville,  will  be  decreed  to  be  made  in  default 
of  sons  and  their  issue  upon  daughters,  as  tenants  in  common  in 
'tail  general,  with  cross  remainders  between  them;  Bastard  v.  Proby, 
2  Cox,  6. 

Where  a  testator  devised  his  estates  to  trustees,  in  trust,  to  settle 
and  convey  the  same  to  the  use  of  or  in  trust  for  G.  R.,  who  had 
then  no  issue,  for  life,  without  impeachment  of  waste,  with  remain- 
der to  his  issue  in  tail  male  in  strict  settlement,  Sir  L.  Shadwell, 
V.  C,  held,  that  the  estates  ought  to  be  settled  upon  G.  R.  for  life, 
without  impeachment  of  waste,  with  remainder  to  his  sons  suc- 
cessively in  tail  male,  with  remainder  to  his  daughters  as  tenants 
in  common  in  tail  male  with  cross  remainders  in  tail  male; 
*  Trevor  v.  Trevor,  13  Sim.  108.  This  decision  was  affirmed  [  *  33  ] 
.  in  the  House  of  Lords:  1   H.  L.  Cas.  239.     See  also  Shelton 

101 


*  34  LOKD  GLENORCIIY  V.  BOSVILLE. 

V.  Watson,  16  Sim.  543;  Coape  v.  Arnold,  2  Sm.  &  GifP.  311,  4  De 
G.  Mac.  &  G.  574. 

Where  a  testator  directed  his  trustees  to  purchase  lands  in  certain 
counties  to  he  settled,  on  the  death  of  the  eldest  son  of  J.  S.  (which 
event  happened)  to  the  use  of  every  son  of  J.  S.  then  living,  or  who 
should  be  born  in  the  testator's  lifetime,  and  the  assigns  of  such  son 
during  his  life,  with  remainder  to  trustees  to  preserve  contingent 
remainders,  bat  to  permit  such  son  and  his  assigns  to  receive  the 
rents  during  his  life,  and  after  his  decease  to  the  use  of  such  son's 
first  and  every  other  son  successively  in  tail  male,  and  on  failure  of 
such  issue,  to  the  use  of  the  testator's  right  heirs.  It  was  held  by 
Lord  Romilty,  M.  R.,  that  the  younger  sons  of  J.  S.  took  as  tenants- 
in-common  for  life  with  remainder  as  to  each  son's  share  to  his  first 
and  other  sons  in  tail  male  with  cross  remainders  over;  Surtees  v. 
Surtees,  12  L.  R.  Eq.  400. 

Whenever  a  strict  settlement  is  decreed,  limitations  to  trustees  to 
preserve  contingent  remainders  will  if  necessary  be  inserted:  Stam- 
ford V.  Hobart,  3  Bro.  P.  C.  31,  Toml.  ed.,  1  Atk.  593;  Baskerville 
V.  Baskerville,  2  Atk.  279;  Hai^risou  v.  Naylor,  2  Cox,  247;  but  since 
the  passing  of  the  Law  of  Property  Amendment  Act  (8  &9  Vict.  c. 
106),  (repealing  7  &  8  Vict.  c.  76,  s.  8),  such  limitations  are  in  some 
cases  unnecessary  (see  s.  8.) 

And  now  by  40  &  41  Vict.  c.  33  (which  passed  on  the  second  of 
August,  1877),  it  is  enacted  that  "every  contingent  remainder  created 
by  any  instrument  executed  after  the  passing  of  this  act,  or  by  any 
will  or  codicil  revived  or  republished  by  any  will  or  codicil  executed 
after  that  date,  in  tenements  or  hereditaments  of  any  tenure,  which 
would  have  been  valid,  as  a  springing  or  shifting  use  or  executory 
devise  or  other  limitation,  had  it  not  bad  a  sufficient  estate  to  sup- 
port it  as  a  contingent  remainder,  shall,  in  the  event  of  the  partic- 
ular estate  determining  before  the  contingent  remainder  vests,  be 
capable  of  taking  effect  in  all  respects  as  if  the  contingent  remainder 
had  originally  been  created  as  a  springing  or  shifting  use  or  execu- 
tory devise  or  other  executory  limitation,"  s.  1. 

But  such  limitations  may  be  inserted,  with  the  object  of  the  trus- 
tees interposing  to  prevent  wilful  waste  and  destruction  on  the  part 
of  the  tenant  for  life  before  any  remainderman  comes  in  esse.  See 
Garth  v.  Cotton,  and  note  post.  Sometimes,  moreover,  when  such 
settlement  is  decreed,  the  freehold  will  be  vested  in  trustees, 
[  *  34  ]  during  the  life  of  the  tenant  for  life  {Woolmore  v.  *Burrou-s, 
1  Sim.  512):  but  the  Court  has  refused  to  appoint  a  pro- 
tector to  the  settlement;  Bankes  v.  Le  Despencer,  11  Sim.  508,  527. 

For  the  manner  in  which  a  direction  to  entail  real  and  personal 
estate  will  be  carried  into  effect.  See  Tennent  v.  Tennent,  1  Dru. 
161;  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  559;  Graves  \. 
Hicks,  11  Sim.  536;  Randall  \.  Daniel,  24  Beav.  193;  andseeSealey 
V.  Stawell,  2  I.  R.  E.  326;  9  I.  R.  E.  499. 

[Estates  tail  are  abolished  and  turned  into  estates  in  fee  simple 
102 


LORD  GLENORCIIY  V.  BOSVILLE.  *  6.) 

in  New  York,  Indiana,  Michigan, Wisconsin, Minnfisota,  Virginia, "West 
Virginia,  North  Carolina,  Kentucky,  Tennessee,  California,  Georgia, 
Dakota,  Alabama,  and  Mississippi.  In  all  of  these,  and  also  in  Penn- 
sylvania and  New  York,  a  grant  or  devise  in  tail  creates  a  fee  simple. 

In  Arkansas,  Colorado,  Missouri,  Vermont,  and  Illinois,  estates  tail 
are  made  a  life  estates. 

In  the  following  Stat©  and  Territories  the  laws  are  silent,  and  es- 
states  tail  would  logically  seem  to  be  preserved  as  at  common-law, 
but  presumably  they  would  not  be  recognized  by  the  Courts:  South 
Carolina,  Idaho,  INIontana,  Wyoming,  Washington,  Oregon,  Texas, 
Nevada,  Kansas,  Iowa,  Oregon  and  Now  Hampshire.] 

As  to  an  entail  directed  to  be  made  of  land  in  Scotland,  see  Gra- 
ham v.  Stewart,  2  Macq.  H.  L.  Cas.  295. 

As  to  the  settlement  to  be  made  when  estates  are  directed,  as  far 
as  the  law  will  permit,  to  be  strictly  settled  so  as  to  go  with  an 
ancient  barony,  see  Bankes  v.  Le  Despencer,  10  Sim.  577,  11  Sim. 
508;  or  to  go  in  a  course  of  entail  to  correspond  as  nearly  as  may 
be  with  the  limitations  of  a  modei'n  barony,  the  patent  conferring 
which  contained  a  shifting  clause  upon  the  holder  of  the  barony 
becoming  entitled  to  an  earldom:  Sackville-Westv.  Viscount  Holmes- 
dale,  4  L.  R.  Ho.  Lo.  543,  reversing  Viscount  Holmesdale  v.  West, 
3  L.  li.  Eq.  474;  and  see  Viscount  Holmesdale  v.  West,  12  L.  R. 
Eq.  280;  Cope  v.  Earl  de  la  Warr,  8  L.  R.  Ch.  App.  982. 

And  where  a  trust  for  the  entail  of  lands  is  executory,  and  to  be 
carried  into  execution  by  the  Court,  it  will  direct  a  conveyance  of 
such  lands  notwithstanding  they  are  gavelkind  to  be  made  accord- 
ing to  the  rule  of  common  law  upon  first  and  other  sons  successively 
in  tail  and  not  according  to  the  custom  of  gavelkind,  Roberts  v. 
Dixivell,  1  Atk.  607,  609,  610. 

Where  real  and  personal  property  were  by  will  directed  to  be  set- 
tled upon  the  same  trusts,  the  Court  did  not  think  itself  authorised, 
through  the  medium  of  a  trust  for  sale,  to  settle  the  real  estate  as 
personalty:   Turner  v.  Sargent,  17  Beav.  515,  520. 

Where  in  a  will  there  are  directions  for  a  settlement,  in  terms 
which  are  ordinarily  construed  to  create  a  joint  tenancy,  the  Court 
has  no  authority,  as  in  the  case  of  marriage  articles,  with  the  same 
directions,  to  carry  them  out  by  giving  a  tenancy  in  common  in  the 
settlement,  unless  there  is  something  to  indicate  that  a  tenancy  in 
common  was  intended:  Marryat  v.  Toicnty,  1  Ves.  102;  Si/nge  v. 
Hales,  2  Ball  &  B.  499. 

Although  in  the  ordinary  construction  of  a  gift  by  will  to  a  wife 
and  children,  they  would  take  as  joint  tenants  (Nevill  v.  Neinll,  7 
L.  R.  Ch.  App.  256,  257),  where  there  has  been  a  direction  to  '^^seciire^' 
the  fund  for  the  benefit  of  the  wife  and  children,  the  Court  has  laid 
hold  of  the  word  "secure,"  as  indicating  an  intention  that  the  fund 
should  be  settled  in  the  usual  mode  upon  the  wife  for  life, 
*  with  remainder  to  her  children.  Combe  v.  Hughes,  14  L.  [  *  35  ] 
R.  Eq.  415,  see  also  Bustard  v.  Saunders,  7  Beav.  92. 

103 


*  3G  LORD  GLENORCIIY  V.  BOSVILLE. 

As  to  the  construction  which  will  be  put  upon  the  word  "  fam- 
ily," in  case  of  executory  trusts  in  a  will,  see  White  Y.Briggs,  2  Ph.  bS'S. 
There  a  testator  directed  that  after  the  death  of  his  wife  (to  whom 
he  gave  a  life  interest  in  all  his  property  both  real  and  personal), 
his  nephew,  C'  W.,  should  "  be  considered  heir  to  all  his  property 
not  otherwise  disposed  of,"  and  added,  that,  "  having  had  little  in- 
tercourse with  him,  and  being  apprehensive  that  his  habits  required 
some  control,  he  directed  that  whatever  portion  of  his  property 
might  thereafter  be  possessed  by  him,  should  be  secured  by  his  ex- 
ecutors for  the  benefit  of  his  family ;  "  and  he  "  urged  upon  his  ex- 
ecutors to  consider  it  an  indispensable  obligation  to  secure  his  es- 
tate in  the  nature  of  a  trusteeship  for  the  parties  who  might  be  in 
terested  thereafter."  It  was  held,  by  Lord  Cottenham,  C,  that  the 
real  estate  should  be  settled  on  the  nephew  for  life,  with  remainder 
to  his  sons  successively  in  tale  male,  with  remainder  to  his  daugh- 
ters as  tenants  in  common  in  fee  ;  and  that  the  personal  estate 
should  be  settled  upon  the  nephew  for  life,  with  remainder  to  all 
his  children  as  joint  tenants,  with  a  proviso  that,  in  the  event  of 
all  the  children  dying  under  twenty-one,  and  in  the  case  of  daugh- 
ters unmarried,  and  in  the  case  of  sons  without  lawful  issue,  the 
personalty  should  be  held  in  trust  for  the  nephew  absolutely. 

A  direction  to  trustees  to  settle  property  upon  a  wife  of  the  tes- 
tator's son,  should  he  marry,  has  been  held  in  the  absence  of  words 
indicating  an  intention  to  restrict  the  jointure  to  the  wife  of  a  first 
marriage,  to  authorise  the  settlement  of  a  jointure  upon  the  wife 
of  a  second  marriage  :  Mason  v.  Mason,  5  I.  K.  Eq.  288. 

Where  a  testator  directed  that  his  daughters'  shares  of  personalty 
under  his  will  should  be  "  settled  upon  themselves  strictly  ^^  (with- 
out any  mention  being  made  of  children),  it  was  held  by  Lord 
Romilly,  M.R.,  that  the  income  of  each  daughter's  share  should 
during  the  joint  lives  of  herself  and  her  husband,  be  paid  to  her 
for  life,  to  her  separate  use,  without  power  of  anticipation  ;  and  if 
she  died  in  the  life  of  her  husband,  then  her  share  should  go  as 
she  should  by  will  appoint,  and  in  default  of  appointment,  to  her 
next  of  kin,  exclusively  of  her  husband  ;  and  if  she  survived  her 
husband,  then  to  her  absolutely  ;  Loch  v.  Bagley,  4  L.  R.  Eq. 
122. 

Although  there  may  be  no  mention   of   children  in  a  direction 

to  settle,  it  seems  that  the  settlement  may  be  extended  to  them 

when  such  appears  to  be  the  intention  of  the  testator.     See 

[  *  36  ]  *  Dnckett  v.  Thompson,  11  L.  R.  L  424.     There  a  bequest  of 

£2000  was  made  for  the  benefit  of  a  feme  sole,  "to  be  paid 

upon  her  marriage,  and  to  be  settled  upon  her  by  her  settlement," 

the  interest  to  be  paid  to  her  in  the  meantime;  and  in  case  she 

should  not  marry  before  attaining  the  age  of  thirty-five  years,  the 

principal  sum  to  be  paid  to  herself.     The  legatee  married  under 

the  age  of  thirty -five  years  and   applied  for   payment  of  a  sum  of. 

money  in  Court,  which  represented  the  legacy.     It  was  held  in  Ire- 

104 


LORD  GLENORCUY  V.  BOSVILLE.  *  dl 

land  by  Chatterton,  V.-C,  that  a  settlement  should  be  made  of  the 
legacy  upon  the  legatee  and  her  children. 

As  to  the  mode  of  settlement,  where  money  is  bequeathed  to 
daughters  "  to  be  settled  on  them  independent  of  their  coverture, 
and  added  to  the  money  already  settled  on  then)  on  their  several 
marriages,"  see  Eaatace  v.  Robinson,  7  L.  11.  Ir.  Ho. 

But  if  a  sum  be  bequeathed  to  a  daughter,  with  a  general  direc- 
tion merely  that  it  is  to  be  settled  on  marriage,  the  Court  will  not, 
it  seems,  act  upon  such  vague  instructions,  and  the  daughter  will 
take  the  sum  absolutely.  Thus,  in  a  case  where  a  testator  by  his 
will  directed  his  pro])erty  to  be  divided  into  nine  shares,  and  gave 
one  and  a  half  share  to  each  of  his  two  daughters,  "  to  be  settled 
on  themselves  at  their  marriage,"  and  the  two  daughters,  who  were 
infants  at  the  testator's  death,  having  attained  twenty- one,  and  being 
•unmarried,  it  was  held  by  Bacon,  V.-C,  that  they  were  entitled  to 
their  shares  absolutely,  and  that  there  was  notrustfor  a  settlement 
which  Ihe  Court  could  execute  :  Magruth  v.  Moreliead,  12  L.  R.  Eq. 
491.  See  also  and  consider  Laing  v.  Laiug,  10  Sim.  315  ;  Kenner- 
ley  V.  Kenncrk'ij,  10  Hare,  160  ;  Munt  v.  Ghjnes,  41  L.  J.  Ch.  639. 

"When  however  the  testator's  intention  is  shown  that  the  childrpn 
of  the  legatee  should  take  under  a  settlement  which  he  directs  to 
be  made  of  the  legacy,  the  Court  will  ordinarily  direct  a  settlement 
upon  the  legatee  for  life,  with  a  power  to  appoint  among  his  chil- 
dren, with  limitations  in  default  of  appointment  to  children  who 
being  sons  attain  twenty-one,  or  being  daughters  attain  that  age  or 
marry,  as  tenants  in  common  :  Taggart\.  Taggart,  1  Sch.  &  L.  84; 
Young  v.  Macintosh,  13  Sim.  445  ;  Stanley  v.  Jacknian,  23  Beav. 
450  ;  Cogan  v.  Duffield,  2  Ch.  D.  44  ;  Oliver  v.  Oliver,  10  Ch.  D. 
765  ;  Goivan  v.  Goican,  50  L.  J.  Ch.  248  ;  Eustace  v.  Robinson,  7 
L.  R.  Ir.  83. 

In  Turner  v.  Sargent,  17  Beav.  515,  the  testator,  after  directing 
a  settlement  to  be  made  of  real  and  personal  property  upon  his 
daughter  for  life,  added,  that  it  was  "to  be  secured  for  the  benefit 
of  her  children,  if  more  than  one,  equally,  after  her  death, 
so  that  *  the  issue  of  any  su3h  child  dying  in  his  daughters  [  *37  ] 
lifetime  might  take  his  or  her  parent's  share,  and  in  default 
of  such  children  or  other  issue,  then  to  his  son  W.  absolutely." 
Sir  J.  Romilly,  M.  R.,  directed  a  settlement  to  be  made  according 
to  which,  after  the  decease  of  her  daughter,  the  property  was  to  be 
in  trust  for  her  children  ;  but  if  any  child  died  in  her  lifetime,  leav- 
ing children  or  remoter  issue  who  should  be  living  at  her  death,  such 
children  or  remoter  issue  should  take  the  share  of  the  child  of  the 
testator's  daughter  so  dying,  per  sfiVpes,  but  inter  se,  as  tenants  in 
common,  with  limitations  in  the  natiu'e  of  cross  remainders  in 
favour  of  the  children  and  issne  who  should  survive  the  testator's 
daughter,  as  respected  the  share  of  any  child  dying  in  her  lifetime 
without  leaving  issue,  and  as  respected  the  share  of  any  issue  dying 
in  her  lifetime.     And  if  no  child  cf  the  testators  daughter  or  issue 

105 


*  38  LORD  GLENORCHY  V.  BOSVILLE. 

of  any  deceased  child  should  be  living  at  her  decease,  there  was  to 
be  an  ultimate  trust  for  W.,  so  that  the  death  of  the  testator's 
daughter  was  the  period  or  event  at  which  the  vesting  of  the  prop- 
erty in  the  children's  issue,  or  in  the  legatee  and  devisee  over,  was 
to  be  ascertained. 

And  where  trustees  have  been  entrusted  with  a  discretion  as  to 
the  manner  in  which  the  settlement  is  to  be  made,  a  power  may  be 
given  to  the  legatee  to  appoint  a  life  interest  in  the  amount  settled 
to  her  husband.      Charlton  v.  Rendall,  11  Hare,  296,  posf,  p.  46. 

The  ultimate  trusts  of  a  settlement  directed  to  be  made  upon  a 
legatee  and  her  issue  (excluding  her  husband)  will  be  as  the  lega- 
tee should  by  will  appoint,  and  in  default  of  appointment  to  her 
absolutely.     Stanley  v.  Jackman,  23  Beav.  450. 

Where  a  fund  was  by  will  bequeathed  to  a  man  till  married,  and 
after  his  marriage  to  be  settled  on  his  wife  and  children,  a  settle- 
ment was  ordered  to  be  made  on  the  husband  for  life,  remainder  to 
the  wife  for  life,  remainder  to  the  children  as  they  should  by  deed 
appoint,  remainder  as  the  survivor  should  by  deed  or  will  appoint, 
but  if  the'husband  was  the  survivor,  he  was  to  have  power  to  ap- 
point to  his  children  by  a  future  marriage.  In  re  Goivan,  Goivan 
V.  Goivan,  17  Ch.  D.  778,  780.     See  Form  of  judgment,  ib.  780. 

Such  settlement  may  be  made  by  the  judgment,  but  it  should 
bear  the  usual  settlement  stamp,  ib. 

Chattels  directed  by  will  to  go  in  strict  settlement.^ — Where  chat- 
tels are  given  by  will,  and  are  directed  to  go  by  reference  to  limi- 
tations of  real  estate  in  strict  settlement,  to  be  enjoyed  by  a  peer 

and  his  successors  and  go  with  the  title,  or  to  go  as  heir- 
[  *  38  ]  looms,  either  simply  or  '■^  as  far  as  the  rules  of  laiu  *  and 

equity  ivill  permit,''^  Courts  of  equity,  even  although  the  le- 
gal estate  may  be  in  executors,  will  not  construe  the  trusts  of  the 
will  as  executory,  and  prevent  the  chattels  vesting  absolutely  in  the 
first  tenant  in  tail  upon  his  birth,  (although  he  die  immediately 
afterwards)  (See  Foley  v.  Burnell,  1  Bro.  C.  C  274;  Vaughan  v. 
Bursle)n,2  Bro.  C.  C.  101;  Duke  of  Newcastle  v.  Countess  of  Lin- 
coln, 3  Ves.  387;  Carr  v.  Lord  Erroll,  14  Ves.  228;  Burrell  v. 
Crutchley,  15  Ves.  544;  Roivland  v.  Morgan,  Q  Hare,  463;  affirmed 
on  appeal,  2  Ph.  764;  In  re  Johnston,  Cockerell  v.  Earl  of  Essex,  26 
Ch.  D.  538,  overruling  Goiuer  v.  Grosvenor,  Barn.  Ch.  Rep.  54;  S.  C, 
5  Madd.  337;  Trafford  v.  Trafford,  3  Atk.  347.  See  also  Doncaster 
V.  Doncaster,  3  K.  &  J.  26;  Evans  v.  Evans,  17  Sim.  108;  Stcqyleton 
V.  Sfapleton,  2  Sim.  N.  S.  212;  and  Tolleniache  v.  Coventry,  2  C.  & 
F.  611;  S.  C,  8  Bligh,  N.  S.  547;  oveiTuling  Lord  Deerhurst  v.  Duke 
of  St.  Albans,  5  Madd.  232;  Gosling  v.  Gosling,  1  De  G.  J.  &  S.  1; 
1  L.  Ep.  Ho.  Lo.  279,  nom.  Christie  v.  Gosling;  In  re  Johnson'' s 
Trusts,  2  L.  R.  Eq.  716;  Countess  of  Harrington  v.  Earl  of  Har- 
rington, 5  L.  R.  Ho.  Lo.  87).  [Equitable  estate  tail  in  possession  or 
remainder,  and  all  remainders  and  reversions  thereon  may  be  bar- 
106 


LORD  GLENORCUY  i;.  BOSVILLE.  *  39 

red  like  legal  estates,  and  the  person  to  whom  an  equitable  estate 
tail  is  so  conveyed  is  entitled  to  have  the  fee  simple  so  created  con- 
veyed to  him  by  the  person  having  the  legal  estate.  Stimson''s  Am, 
Statue  Laws,  Sec.  1313.]  And  even  where  the  future  interest  of 
such  tenant-in  tail  is  contingent  it  is  transmissible  on  his  death  to 
his  personal  representative.^  (In  re  Cresivell,  Parkin  v.  Cresicell,  24 
Ch.  D.  102),  unless  the  being  in  existence  Avhen  the  contingency 
happens  is  an  essential  part  of  the  description  of  the  person  who  is 
to  take,  lb.  107,  and  the  cases  there  cited. 

But  if  a  tenant  for  life  of  the  estate  lower  in  the  settlement  has 
issue  before  the  tenant  for  life  in  possession,  the  chattels  will  not 
vest  indefeasibly  in  such  issue:  Hogg  v.  Jones,  32  Beav.  45. 

Where  chattels  are  directed  to  go  to  the  person  entitled  in  pos- 
session to  real  estate,  in  the  absence  of  an  intention  expressed  that 
they  are  to  go  with  the  real  estate,  or  if  there  is  no  direction  that 
they  are  to  go  as  heirlooms  with  a  title  the  chattels  will  vest  in  the 
first  taker,  whether  he  be  tenant  for  life  or  tenant-in-tail,  Trafford 
V.  Trafford,  3  Atk.  347,  348,  349;  In  re  Johnson's  Trusts,  2  L.  K.  Eq. 
710;  Mackwortli  v.  Hinxman,  2  Keen,  658. 

AVhere,  however,  there  is  such  intention  the  tenant  for  life  of  the 
real  estate,  or  the  first  possessor  of  the  title,  when  the  chattels  are 
to  go  with  the  title,  will  take  only  an  estate  for  life  in  the  chattels, 
Trafford  v.  Trafford,  3  Atk.  347;  Montagu  v.  Lord  Inchiquin,  23  "W. 
E.  592. 

Where  chattels  are  bequeathed  as  heirlooms,  and  directed  to  go 
to  such  person  as  shall  first  attain  twenty-one  and  be  entitled  to  an 
estate  tail  in  possession  in  the  settled  estate,  they  will  vest  abso- 
lutely in  a  tenant-in-tail  in  remainder  who  attains  twenty- 
one  *  {In  re  Johnson's  Estate,  2  L.  R.  Eq.  716;  Martelli  v.  [  *  39  ] 
Holloway,  5  L.  R.  Ho.  Lo.  532),  and  if  the  will  contained  no 
limitation  as  to  attaining  twenty-one,  the  tenant  in  tail  in  remain- 
der would  take  a  vested  interest  in  the  chattels  immediately  on  his 
birth.     Foley  v.  Burnell,  1  Bro.  C.  C.  274;  4  Bro.  P.  C.  319. 

Where,  however,  the  intention  that  no  person  shall  take  the  chat- 
tels absolutely,  who  does  not  live  to  become  entitled  to  the  posses 
sion  of  the  real  estate,  is  clearly  expressed,  the  court  must  execute 
that  intention.  Potts  v.  Potts,  3  J.  &  L.  353,  1  H.  L.  Cas  671. 
See  also  Trafford  v.  Trafford,  3  Atk.  347;  Foley  v.  Burnell,  1  Bro. 
C.  C.  101;  Lord  Scarsdale  v.  Curzon,  1  J.  &  H.  40;  Sackville-West 
V.  Viscount  Homesdale,  4  L.  R.  Ho.  Lo.  543. 

[In  executory  trusts  created  by  will,  there  is  no  presumptions  as 
to  the  intentions  of  the  testator.  McPhe^'son  v.  Snowden,  19  Md. 
197;  Allen  v.  Anderson,  49  Pa.  St.  333;  Robertson  v.  Johnston,  36 
Ala.  197.] 

In  order  to  prevent  the  separation  of  the  chattels,  real  or  per- 
sonal, which  takes  place  when  they  vest  absolutely  in  a  tenant-in- 
tail  on  whose  death  they  go  to  his  next  of  kin,  while  the  freeholds 
go  to  those  entitled  under  the  limitations  in  the  will,  it  is  usual  to 

107 


*  40  LORD  GLENORCHY  V.  I30SVILLE. 

limit  over  the  chattels  in  case  any  such  tenants-in-tail  (being  the 
sons  of  persons  in  esse)  should  die  under  twenty-one  and  without 
inheritable  issue  to  the  person  who  in  that  event  would  succeed  to 
the  freeholds,  or  according  to  a  forro  more  frequently  used,  the 
personalty  should  be  subjected  to  the  same  limitations  as  the  free- 
holds, with  a  declaration  that  it  should  not  veet  absolutely  in  any 
tenant-in-tail  by  purchase  until  twenty-one,  or  death  under  that  age 
leaving  issue  inheritable  under  the  entail. 

But  even  under  these  provisions  a  separation  of  the  chattels  from 
the  freeholds  would  take  place  in  the  event  of  the  tenant  for  life 
dying  under  twenty-one,  leaving  inheritable  issue,  for  in  such  case 
the  tenant-in-tail  would  take  the  chattels  absolutely,  while  the  free- 
holds would  go  to  him  in  tail. 

The  best  form  to  adopt  in  order  to  prevent  this  result  is  a  de- 
claration that  the  chattels  should  not  vest  absolutely  in  any  tenant- 
in-tail  h J  purchase,  who  may  die  under  twenty-one,  but  shall  at  his 
death  devolve  as  nearly  as  possible  in  the  same  manner  as  the  free- 
holds. 1  Davidson's  Convey.  464  and  see  Harrington  v.  Harring- 
ton, 3  L.  K.  Ch.  App.  564,  573;  5  L.  R.  Ho.  Lo.  87,  102. 

"Whatever  form  a  conveyancer  may  adopt  in  such  cases,  care  should 
be  taken  that  the  vesting  of  the  chattels  should  not  be  suspended 
for  such  a  period  as  to  offend  against  the  rule  with  regard  to  per- 
petuities. Thus  if  leaseholds  or  chattels  personal  are  vested  in 
trustees  upon  trusts  correspondiug  with  land  in  strict  settlement, 
but  so  that  they  are  not  to  vest  in  any  tenant-in-tail  in  possession 
till  he  shall  attain  the  age  of  twenty-one,  the  period  of 
[  *  40  ]  ^vesting  is  to  remote  ( Ibetson  v.  Ibetson,  5  My.  &  Cr.  26; 
Lord  Dungaunon  v.  Smith,  12  C.  &  F.  546;  Ker  v.  Lord  Dun- 
gannon,  1  Dru.  &  Warr.  509;  Harvey  y.  Harvey,  5  Beav.  134;  Wain- 
man  V.  L'ield,  Kay,  507;  Harding  v.  Nott,  26  L.  J.  (Q.  B.)  244), 
and  it  is  immaterial  that  the  intermediate  rents  and  profits  of  the 
leaseholds  are  given  to  persons,  answering  one  of  these  descrip- 
tions, viz.,  that  of  a  tenant-in-tail  in  possession,  until  a  person  an- 
swering to  the  other  description,  viz.  that  of  being  of  the  age  of 
twenty-one  years,  comes  into  existence,  lb.,  and  to  see  note  to  Cadell 
V.  Palmer,  L.  C.  R.  Prop.  481,  3rd.  ed. 

Where  moreover  a  trust  is  created  to  secure  the  devolution  of 
chattels  as  heirlooms,  any  limitations  which  are  to  take  efPect  by 
way  of  postponement  or  defeasance  of  an  absolute  interest  are 
subject  to  all  the  rules  which  govern  the  validity  of  conditions  sub- 
sequent. Such  limitations,  therefore,  must  be  certain,  not  only  in 
expression,  but  also  in  operation,  and  it  is  essential  to  their  validity 
that  it  should  be  capable  of  ascertainment  at  any  given  moment  of 
time,  whether  the  limitation  has  or  has  not  taken  effect.  See  Jn  re 
Viscount  Exmouth,  Viscount  Exmouth  v.  Praed,  23  Ch.  D.  158; 
there  a  testator  who  has  a  peer,  bequeathed  chattels  to  trustees, 
upon  trust  to  permit  and  suffer  the  same  to  go  and  be  held  and  en- 
joyed with  the  title,  so  far  as  the  rules  of  law  and  equity  admit,  by 
108 


LORD  GLENORCHY"  V.  BOSVILLE.  *41 

the  person  who  for  the  time  being  should  bo  actually  possessed  of 
the  title,  in  the  nature  of  heirlooms,  and  so  that  no  person  in  ex- 
istence at  the  time  of  the  testator's  decease,  or  born  in  duo  time 
afterwards,  and  afterwards  coming  to  the  title  should  have  any  other 
than  a  life  interest  in  the  same,  and  so  that  no  person  should  acquire 
an  absolute  interest  in  the  same  till  the  ex{)iration  of  twenty-one 
years  after  the  decease  of  all  such  persons  as  should  be  in  c^xistence  at 
the  time  of  the  testator's  decease,  and  afterwards  attaining  the  title, 
It  was  held  by  Fry,  J.,  that  the  latter  clause  of  the  limitations  was 
void  for  uncertainty  in  operation,  and  that  the  lirst  person  born  after 
the  death  of  the  testator  who  attained  the  title,  acquired  an  abso- 
lute interest  in  the  chattels,  notwithstanding  that  there  was  still 
living  a  person  who  was  alive  at  the  testator's  death,  and  who  Avas 
capalDle  of  inheriting  the  peerage. 

Where,  however,  personalty  is  settled  with  reference  to  the  limi- 
tations of  real  estate,  there  is  a  direction  to  the  eflfect  that  the  per- 
sonalty shall  not  vest  in  any  tenant-in- tail  by  purcliase  until  he 
shall  attain  twenty-one,  such  direction  will  not  offend  the  rule 
against  perpetuities,  inasmuch  as  a  tenant-in-tail  by  purdcase  must 
come  into  esse  during  the  life  of  the  parent  tenant  for  life, 
*  Christie  v.  Gosling,  1  L.  R.  Ho.  Lo.  279;  affirming  Gosling  [  *  41  ] 
V.  Gosling,  1  De  G.  J.  &  S.  1,  reversing  the  decision  of  Lord 
Romilly,  reported  32  Beav.  58;  See  also  Marfelli  v.  Holloway,  5  L. 
E.  Ho.  Lo.  532;  affirming  the  decision  of  Sir  J.  Stuart,  V.-C,  re- 
ported 6  L.  11.  Eq.  523;  nom.  Holloicay  v.  Webber. 

And  it  seems  that  the  words  "tenant-in-tail"  alone  may  from  the 
context  have  the  same  meaning  as  tenant-in-tail /^^pK/-c/(ase.  Chris- 
tie V.  Gosling,  1  L.  R.  Ho.  Lo.  279,  dissentiente  Lord  St.  Leonards. 

It  is  somewhat  douljtful  as  to  the  effect  of  the  words  "as  far  as 
the  rules  of  law  and  equity  permit"  in  restraining  such  gifts  within 
the  rule  against  perpetuities.  See  Tollemache  v.  Earl  of  Coventry, 
2  C.  &  F.  611;  8  Bl.  N.  S.  547;  12  C.  &  F.  555  n.  Kerx.  LordDun- 
gannon,  1  Dr.  Warr.  536;  Mackivorth  v.  Hinxman,  2  Keen,  658. 

It  is  clear,  however,  that  that  these  words  do  not  make  the  trust 
of  chattels  an  executory  trust  and  not  a  direct  gift,  so  as  to  enable 
the  court  to  carry  out  the  general  intent  of  the  testator,  and  without 
any  direction  to  that  effect,  carry  over  the  chattels  within  certain 
limits  to  go  along  wi.th  real  estate  on  a  tenant-in-tail  dying  under 
twenty-one  without  issue.  Countess  of  Harrington  v.  Earl  of  Har- 
rington, 5  L.  R.  H.  L.  107. 

Although  as  we  have  seen  the  words  "so  far  as  the  rules  of  law 
and  equity  will  permit"  will  not  make  a  deviseor  bequest  executory, 
or  correct  a  gift  which  in  terms  infringes  the  rule  again&t  perpetuity 
{Tollemache  v.  Earl  of  Coventry,  2  C.  &  F.  611;  8  Bli.  547),  they 
may  be  fairly  referred  to  when  a  construction  warranted  by  the 
words  used  is  impugned  on  the  score  of  inconsistency  with  the 
intention  of  the  testator.  Harrington  v.  Harrington,  3  L.  R.  Ch. 
App.  564,  574,  5  L.  R.  Ho.  Lo.  102,  107. 

109 


*  42  LORD  GLENORCHY  V.  BOSVILLE. 

[  If  a  will  or  deed  sets  forth  a  trust  so  definitely  that  it  only  re- 
mains for  the  trustee  to  execute  it  as  directed,  it  is  termed  a'n  exe- 
cuted trust  and  is  subject  to  the  rules  controlling  legal  estates.  But 
if  the  trustee  receives  a  trust  which  is  subject  to  future  events  or 
contingencies,  and  the  directions  regarding  it  are  informal  or  com- 
plete it  is  an  executory  trust,  because  it  must  be  shaped  and  adapt- 
ed to  the  intentions  of  the  settlor  or  testator.  MuUanyv.  Mullany, 
40.  N.  J.  Eq.  16;  Phila.  v.  Girard,  45  Pa.  St.  9;  Edmondson  v. 
Dijson,  2  Kelly,  307.] 

"Where  chattels  are  by  will  creating  an  executory  trust  directed  to 
be  settled  as  heirlooms  to  go  with  a  title,  the  court  will  mould  the 
settlement  so  as  to  avoid  any  infringement  of  the  rule  against  per- 
petuities, and  will  give  life  interests  successively  to  the  holder  of 
the  title,  and  his  successors  living  at  the  death  of  the  testator.  See 
In  re  Johnston,  Cockerell  v.  Earl  of  Essex,  26  Ch.  D.  538.  There 
the  testatrix  bequeathed  the  contents  of  her  house  to  trustees  upon 
trust  that  they  should  in  the  first  place,  select  and  set  aside  a  col- 
lection of  the  best  paintings,  statuary  and  china  for  the  Earl  of  Es- 
sex (the  sixth  Earl)  and  his  successors,  to  be  held  and  settled  as 
heirlooms  and  to  go  ivith  the  title.  It  was  held  by  Chitty,  J.,  that 
the  bequest  to  the  trustees  was  a  clear  direction  to  settle,  and 
created  an  executory  trust,  and  a  settlement  was  directed 
[  *  42  ]  (to  be  settled  in  Chambers)  *  giving  a  life  interest  to  the 
sixth  Earl  with  remainder  to  the  next  Earl  (who  was  living 
at  the  death  of  the  testatrix)  for  his  life. 

The  same  will  be  done  where  leaseholds  are  by  executory  trust 
devised  upon  trusts  corresponding  with  those  of  real  estates  in  strict 
settlement.  See  Miles  v.  Harford,  12  Ch.  D.  691;  there  freeholds 
were  devised  to  A.  for  life,  remainder  to  his  first  and  other  sons  in 
tail-male,  with  a  shifting  clause,  which  provided  that  if  A.  or  his  is- 
sue male  should  become  entitled  to  a  certain  other  .estate,  the  de- 
vised estate  should  go  over,  and  leaseholds  were  given  upon  such 
trusts  and  purposes  as,  regard  being  had  to  the  difference  of  tenure, 
would  most  nearly  correspond  with  the  uses  of  the  freeholds.  It 
was  held  by  Sir  G.  Jessel,  M.  R.,  that  this  was  an  executory  trust. 
"  If,"  said  his  Lordship,  "we  imported  the  limitations  of  the  free- 
hold estate  into  the  leaseholds  they  would  fail  together  after  the 
gift  to  the  first.  Then  when  you  write  it  out  you  are  to  have  re- 
gard to  the  difference  of  the  tenure.  What  does  that  mean  ?  ^yhen 
according  to  the  tenure  it  will  not  take  effect  you  cannot  put  it  in, 
that  is  all.  It  will  be  absurd  to  suppose  that  you  have  regard  to  the 
differences  of  the  tenure  to  make  them  best  correspond,  when  you 
simply  make  them  null  and  void.  The  testator  knew  that  some- 
thing'will  not  work,  and  he  says  you  are  to  make  them  correspond 
having  regard  to  that — that  is,  having  regard  to  the  effect  of  the 
tenure  on  the  limitation  or  the  proviso.  But  when  you  see  the  ten- 
ure is  of  such  a  kind  that  it  cannot  be  done  by  literally  repeating 
the  provisions,  then  you  must  modify  them  accordingly." 
110 


LOUD  GLEXORCIIY  V.  BOSVILLi:.  *  43 

Although  it  has  been  doubted  whether  the  Court  would  limit  a 
sum  of  money  in  the  same  way  as  real  estate,  where  there  was  no 
real  estate  to  guide  the  limitations  (Green  v.  Ekins,  2  Atk.  478), 
the  objection,  if  tenable,  does  not  apply  to  the  case  of  family  jew- 
els, limited  by  executory  trust  as  heirlooms,  ^ao  Shelley  v.  Shelley, 
0  L.  11.  Eq.  540.  There  jewels  were  bequeathed  to  the  testatrix's 
nephew,  John  Shelly,  "and  to  be  held  as  heirlooms  by  him,  and  by 
his  eldest  son  on  his  decease,  and  to  go  and  descend  to  the  eldest 
son  of  such  eldest  son,  and  so  to  the  eldest  son  of  his  descendants, 
as  far  as  the  rules  of  laiv  or  equity  will  permit.  And  /  request  my 
said  nepheiv  to  do  all  in  his  power,  by  his  ivill  or  otherwise,  to  give 
effect  to  this  my  ivish  as  to  these  things  so  directed  to  go  as  heirlooms 
as  aforesaid.'"  It  was  held  by  Sir  W.  Page  Wood,  V.-C,  that  a 
valid  executory  trust  was  created  for  John  Shelly  for  life,  with  re- 
mainder to  Edward  Shelley,  his  eldest  son,  for  life;  and  upon  the 
death  of  Edward  Shelley,  in  trust  for  Edward  Shelley's 
eldest  son,  to  be  a  vested  *  interest  in  him  when  he  should  at-  [  *  43  ] 
tain  twenty-one;  but  if  he  should  die  in  his,  Edward  Shel- 
ley's lifetime,  or  after  Edward  Shelley's  death,  without  having  at- 
tained twenty  one,  leaving  an  eldest  sou  born  before  Edward 
Shelley's  death,  in  trust  for  such  last  mentioned  eldest  son  to  be  a 
vested  interest  when  he  should  attain  twenty- one;  and  in  case  the 
jewels  should  not  become  vested  in  any  persons  .under  the  limitations 
aforesaid,  then  (subject  to  the  life  interest  of  Edward  Shelley)  in 
trust  for  John  Shelley  absolutely. 

The  execution  of  a  disentailing  deed  of  the  real  estate  by  a  tenant 
in  tail,  who  does  not  live  to  become  entitled  to  the  chattels,  will 
not  prevent  their  vesting  in  the  person  who  would  have  been  enti- 
tled to  the  real  estate  in  possession  if  such  disentailing  deed  had 
not  been  executed:     Hogg  v.  Jones,  32  Beav.  45. 

Where  chattels  were  bequeathed  to  executors  to  hold  as  heir- 
looms to  be  used  by  the  person  entitled  to  a  house  under  a  deed  of 
entail  (which  was  non-existent),  and  the  testator  died  absolutely 
entitled  to  the  house,  it  was  held  that  the  heirloom  passed  to  the 
testator's  heir-at-law:  Marquis  of  Bute  v.  Ryder,  "W.  N.,  2  August, 
1840,  p.  179. 

It  may  be  here  mentioned  that  by  sect.  37  of  the  Settled  Land 
Act,  1882  (45  &  46  Vict.  c.  38),  "where  personal  chattels  are  set- 
tled on  trust  so  as  to  devolve  with  land  until  a  tenant  in  tail  by 
purchase  is  born  or  attains  the  age  of  twenty-one  years,  or  so  as 
otherwise  to  vest  in  some  person  becoming  entitled  to  an  estate  of 
freehold  of  inheritance  in  the  land,  a  tenant  for  life  of  the  land 
may  sell  the  chattels  or  any  of  them"  (sub-s.  1 ) ;  the  money  arising 
from  the  sale  to  be  invested  as  therein  mentioned  (sub-s.  2),  and 
it  is  not  to  be  made  without  an  order  of  the  Court  (sub-s.  3).  See 
In  re  Brown's  Will,  ^y.  N.,  5  July,  1884,  p.  157.  As  to  the  sale 
of  heirlooms  under  the  Act,  see  In  re  Houghton  Estate , SO  Ch.  D. 
102;  In  re  Duke  of  Marlborough'' s  Settlement,  Duke  of  Marlborough 

111 


*  44  LORD  GLENORCHY  V.  BOSVILLE. 

V.  Majoribanks,  30  Ch.  D.  127.  A  baronetcy  is  it  seems  an  incor- 
poreal hereditament,  and  as  such  is  within  the  interpretation  clause 
(s.  2,  sub-s.  10)  of  the  Settled  Land  Act,  1862,  and  the  Court  has 
jurisdiction  under  that  Act  to  direct  a  sale  of  heirlooms  settled  so 
as  to  devolve  with  the  dignity;  In  re  Sir  J.  Rivett  Carnacs  Will, 
30  Ch.  D.  136. 

Doctrine  of  cypres,  as  apjoUcable  to  executory  trusts.l^ — AVhere 
an  executory  trust,  if  carried  literally  into  effect,  would  be  void  for 
illegality,  as  where  it  would  infringe  the  rule  against  perpetuities, 
the  Court,  in  order  to  carry  the  testator's  intention  into  effect  as 
far  as  possible,  or,  as  it  is  termed,  cy-pres,  will  direct  a  settlement 
to  be  made  as  strictly  as  the  law  will  permit.  [In  North  Carolina, 
Iowa,  Alabama,  Connecticut,  and  Indiana,  the  cyiwes  doctrine  has 
been  repudiated.  Carter  v.  Balfoiu-  19  Ala.  814;  Grrimes  u  Har- 
mon 35  Ind.  198;  White  v.  Fisk  22  Conn.  31;  Lepage  v.  McNamara, 
5  Clarke  (la.),  147;  McAnley  v.  Wilson,  1  Dev.  Eq.  276.  In  Penn- 
sylvania the  doctrine  has  been  admitted  to  a  limited  extent  by 
statute  1855,  P.  L.  331;  and  see  Zeisweiss  v.  James,  13  P.  F.  Smith, 
465.  In  all  of  the  New  England  States  the  doctrine  has  been  di- 
rectly countenanced  or  left  an  open  question.  Howard  v.  Peace 
Society,  49  Me.  302;  Brown  v.  Concord,  33  N.  H.  296;  Burr  v. 
Smith^  7  Vt.  287;  Jackson  v.  Phillips,  14  Allen,  570;  Derby  v.  Der- 
by, 4  R.  I.  439.  In  New  Jersey  the  question  is  not  settled,  but  it 
has  been  said  that  a  bequest  which  would  be  enforced  in  England 
would  not  be  carried  into  effect  in  that  State,  owing  to  indefinite- 
ness  of  the  object,  or  impracticability  of  its  exact  execution,  Thom- 
son's Exr's,  V.  Norris,  5  C.  E.  Green,  522. 

In  Illinois  and  Missouri  the  doctrine  has  been  approved,  Gilman 
V.  Hamilton,  16,  111,  231;  Academy  i'.  Clem-ns,  50  Mo.  167. 

As  to  the  question  is  Maryland,  Virginia,  New  York  and  South 
Carolina,  see  Pringle  v.  Dorsev,  3  S.  C.  (N.  S.)509;  Bascom  v.  Al- 
bertson,  34  N.  Y.  584;  Gallego  u.  Atty.-Gen.,  3  Leigh,  450;  Wilder- 
man  V.  Baltimore  8  Md.  551.]  Thus,  in  Humberston  v.  Humber- 
ston{l.  P.  W^ms.  332;  S.  C.  2  Vern.  737;  Prec.  Ch.  455),  where 
there  was  a  devise  to  a  corporation  in  trust  to  convey  to  A.  for  life, 
and  afterwards,  upon  the  death  of  A.,  to  his  first  son  for  life,  and 
so  to  the  first  son  of  that  first  son  for  life,  with  remainder,  in  default 
of  issue  male  of  A.,  to  B.  for  life,  and  to  his  sons  and  their 
[  *  44  ]  sons  in  the  same  manner;  Lord  Coicper  said  *  that  though 
the  attempt  to  create  a  perpetuity  was  vain,  yet,  so  far 
as  was  consistent  with  the  rules  of  law,  it  ought  to  be  complied 
with;  and  he  directed  that  all  the  sons  already  born  should  take 
estates  for  life,  with  limitations  to  their  unborn  sons  in  tail.  See 
Williams  v.  Teale,  6  Hare,  239,  and  cases  there  cited;  Lyddon 
Ellison,  19  Beav.  565,  573;  Peard  v.  Kekeivich,  15  Beav.  173; 
Hampton  v.  Holman,  5  Ch.  D.  183;  Miles  v.  Harford,  12  Ch.  D. 
691;  see,  however,  Blagrove  v.  Hancock,  16  Sim.  878.  [There  ap- 
112 


LORD  GLENORCIiy  V.  BOSVILLE.  *  45 

pears  to  bo  no  reason  why  the  cy  pres  doctrine  as  laid  down  in 
Jackson  v.  Phillips,  14  Allen,  571,  should  not  be  approved  in  all  of 
the  States  in  which  the  Statute  of  Eliz.  is  in  force,  or  its  princi- 
ples have  been  adopted  by  the  law  of  the  State.  See  Paschal  v. 
Acklin,  27  Texas,  173;  Walker?'.  Walker,  25  Ga.  420;  Dickson  v. 
Montgomery,  1  Swan  (Tenn.),  348;  Vidal  u.  Girard,  2  Howard,  128; 
Chambers  v.  St.  Louis,  29  Mo.  543;  The  Supreme  Court  of  the 
United  States  in  Fountain  v.  liavenel,  17  Howard,  307,  seemed  op- 
posed to  the  doctrine,  but  the  tendency  was  the  other  way  in  Lor- 
ings  V.  Marsh,  G  Wallace  337.] 

As  to  li'hat  pnwerfi  or  provisions  will  be  inserted  in  settlements  di- 
rected to  be  made  bij  the  Court.\ — "Where  in  marriage  articles  or  a 
will,  a  settlement  is  directed  to  be  made  with  the  usual  powers  or 
proper  powers,  a  Court  of  equity  will  order  to  be  inserted  in  the 
settlement  powers  of  leasing  for  twenty-one  years  {Hill  v.  Hill,  G 
Sim.  145;  Duke  of  Bedford  v.  Marquis  of  Abercotni,  1  My.  <*cCr.  VI); 
powers  to  grant  building  or  mining  leases  where  the  property  is  lit 
for  those  purposes  {Hill  v.  Hill,  G  Sim.  145);  powers  of  sale  and  ex- 
change (Hill  V.  Hill,  G  Sim.  13G;  Peake  v.  Pendlington,  2  V.  &  B. 
311;  Williayns  v.  Carter,  Sug.  Fow.  App.  22,  7th  edit.  See,  how- 
ever, Breivster  v.  Angell,  1  J.  &  W.  625;  Home  v.  Barton,  Jac. 
439);  of  maintenance  and  advancement  {Mayn  v.  Mayn,  5  L.  K. 
Eq.  150);  of  varying  securities  {Sampayo  v.  Gould,  12  Sim.  42G); 
powers  of  partition  where  there  is  any  joint  property  {Hill  v.  Hill, 
6  Sim.  145);  powers  of  appointing  new  trustees  {Lindoiv  v.  Fleet- 
n'oorZ,  G  Sim.  152;  Sampayo  v.  Gould,  12  Sim.  42G);  but  not  a 
power  to  raise  portions  {Higginson  v.  Barneby,  2  S.  &  S.  518,  and 
Bee  In  re  Grier's  Estate,  4  Ir.  Eq.  1,  11,  12;  S.  C.  nom.  Grier  v. 
Grier,  5  L.  R.  Ho.  Lo.  688);  nor  to  jointure  a  future  wife  {Duke 
of  Bedford  X.  Marquis  of  Abercorn,  1  My.  &  C.  312).  But  such 
powers  were  recently  inserted  in  a  case  where  an  estate  was  directed 
to  bo  settled  to  go  along  with  a  barony,  and  the  trustees  were  to  in- 
sert all  such  powers  as  they  should  consider  proper,  or  as  counsel 
should  advise;  Sackville-West  v.  Viscount  Hohnesdale,  4  L.  R.  Ho. 
Lo.  543,  569;  as,  however,  will  be  hereafter  seen,  an  intention  that 
such  powers  should  be  inserted,  might  have  been  implied,  j^ost,  j). 
45.  [In  marriage  articles  a  settlement  will  bo  made  according  to 
the  intention  of  the  parties  if  possible:  Gause  v.  Hale,  2  Ired.  Eq. 
241;  Allen  v.  Rumph,  2  Hill  Eq.  1.] 

In  considering  these  cases,  it  ought  to  be  remembered  that  there 
is  a  palpable  distinction  between  powers  for  the  management  and 
better  enjoyment  of  the  settled  estates  which  are  beneficial  to  all 
parties,  and  powers  which  confer  personal  privileges  on  particular 
parties,  such  as  powers  to  jointure,  or  to  raise  money  for  any  par- 
ticular purpose.  But  powers  of  leasing,  of  sale,  and  exchange,  and 
(where  there  is  any  joint  property,  or  there  are  any  mines, 
or  any  land  fit  for  building  purposes)  ^powers  of  partition,  [  *  45  ] 

8   WHITE  ON   EQUITY.  113 


*  46  LORD  GLENORtUY  V.  BOSVILLE. 

of  leasing  mines,  and  of  granting  building  leases,  are  powers  for 
the  general  management  and  better  enjoyment  of  the  estates,  and 
such  powers  are  beneficial  to  all  parties;  Hill  v.  Hill,  6  Sim.  145. 

But  where  the  insertion  of  certain  powers  is  specilicall.y  directed, 
the  expression  "  and  other  usual  powers,''''  coming  afterwards  will 
be  considerably  narrowed  (Pearse  v.  Baron,  Jac.  158;  Hill  v.  Hill, 
6  Sim.  141;  Breicster  \.  Angell,  1  J.  &  \V.  625;  Home  v.  Barton, 
Jac.  439;  Higginson  v.  Barneby,  2  S.  &  S.  51G);  unless  it  is  con- 
tained in  a  separate  and  distinct  sentence:  Lindoio  v.  Fleeticood,  6 
Sim.  152. 

A  power  of  varying  securities  is  analogous  to  a  power  of  sale  and 
exchange:  so  that  where  real  estate  was  covenanted  to  be  settled 
upon  the  same  trusts  and  with  the  like  powers,  as  stock  settled 
upon  trusts  with  power  of  varying  securities,  a  power  of  sale  and 
exchange  of  the  real  estate  was  inserted  in  the  settlement:  Wil- 
liams V.  Carter,  2  Sug.  Pow.  App.  22,  7th  ed. ;  Home  v.  Barton,  Jac. 
440;  Elton  v.  Elton,  27  Beav.  634. 

In  the  absence  of  express  words,  if  in  the  instrument  directing  a 
settlement  an  intention  that  certain  powers  should  be  inserted  in 
the  settlement  may  be  implied,  the  Court  will  direct  the  introduc- 
tion of  such  powers.  Thus,  if  in  a  will  directing  a  settlement  to  be 
made,  powers  of  jointuring  and  charging  w'ith  portions  are  to  be 
given  to  tenants  for  life;  and  in  a  codicil  directing  a  different  set- 
tlement the  will  is  in  other  respects  referred  to  as  the  example  or 
model  to  be  followed;  the  introduction  of  powers  of  jointuring  and 
charging,  at  any  rate  where  there  is  full  discretion  given  to  the 
trustees  as  to  the  insertion  of  powers,  provisoes,  declarations,  and 
agreements,  will  be  authorised:  Sackville-West  \.  Viscount  Holmes- 
dale,  4  L.  R.  Ho.  Lo.  543,  569,  reversing  S.  C  nom.  Viscount  Holmse- 
dale  V.  West,  3  L.  R.  Eq.  474. 

It  seems  to  have  been  formerly  supposed  that  where  no  direction 
as  to  the  insertion  of  powers  was  given,  a  Court  of  equity  would 
not,  in  the  absence  of  any  expression  from  which  the  intention  to 
include  any  powers  might  be  inferred,  authorise  their  introduction 
into  a  settlement.  Wheate  v.  Hall,  17  Ves.  80;  Brewster  v.  Angell, 
1  J.  &  W.  628.  But  see  Wheate  v.  Hall,  17  Ves.  80,  explained  in 
Wise  V.  Piper,  13  Ch.  D.  853.  • 

In  the  case,  however,  of  Woolmorex.  Burrous,  1  Sim.  518,  a  power 
of  leasing  was  in  such  a  case  introduced,  but  the  property  was  in 
Ireland. 

In  a  more  recent  case,  where  a  testator  by  his  will  directed  a  set- 
tlement of  real  and  personal  property  to  be  made,  but  gave  no  di- 
rection as  to  pou-ers.  Sir  John  Romilly,  M.R.,  was  of  opinion 
[*46]  that  *  the  testator  by  simply  directing  a  settlement,  ought 
to  be  held  to  have  intended  ail  the  usual  powers  to  be  in- 
cluded.    That  the  settlement,  therefore,  ought  to  contain  the  usual 
powers  of  leasing,  sale  and  exchange,  and  for  the  appointment  of 
new  trustees,  together  with   a  receipt  clause,  and    provisions  for 
114 


LORD  GLENORCHY  V.  BOSVILLE.  *  47 

maintenance,  education,  and  advancement  for  the  children  or  issue 
livin<:f  at  the  death  of  the  tenant  for  life,  during  their  minority: 
Turner  v.  Sargent,  17  Beav.  515;  and  see  Byam  v.  Bjjam,  11)  Beav. 
58;   Wise  v.  rijjer,  18  Ch.  D.  848;  Scott  v.  Stcirard,  27  Beav.  307. 

Where,  under  a  covenant  to  settle  after-acc^uired  property  upon 
the  same  trusts  as  personalty  Avas  settled,  or  as  near  thereto  as  the 
nature  of  the  property  would  admit,  power  to  grant  mining  as  well 
as  agricultural  leases  was  ordered  by  the  Court  to  be  inserted  in 
the  settlement,  the  prior  owner  having  granted  such  leases.  Scott 
v.  Steward,  27  Beav.  807. 

Where  a  testator  had  directed,  that  in  the  event  of  the  man-iage 
of  his  daughter,  a  certain  portion  of  his  property  should  be  secured 
to  her,  and  the  issue  of  her  marriage,  by  a  settlement  of  some  or 
other  good  assurance,  in  such  manner  as  his  trustees  or  trustee  for 
the  time  being  might  think  lit,  the  Court,  on  an  application  to  which 
the  surviving  trustee  was  a  party,  approved  of  a  power  in  the  set- 
tlement made  on  the  marriage  of  the  daughter,  enabling  her  to  ap- 
point by  will  a  life  estate  in  the  property  to  her  husband:  Charlton 
v.  Rendall,  1 1  Hare,  290. 

So  where  a  father  by  will  directed  a  fund,  given  to  his  daughter, 
to  be  settled  "upon  her  and  her  issue,"  so  that  "the  same  might 
not  be  liable  or  subject  to  the  debts,  control,  or  engagements  of  any 
husband"  whom  she  might  happen  to  marry  during  her  lifetime. 
It  was  held  by  Sir  John  RomiMij,  M.Il.,  that  the  settlement  ought  to 
give  the  daughter  a  power  of  appointment  by  will  in  default  of  is- 
sue.    Stanley  v.  Jackman,  28  Beav.  450. 

Where  by  marriage  articles  personalty  is  settled  upon  the  issue 
of  the  marriage,  it  seems  that  the  Court  would  not  direct  the  inser- 
tion of  a  hotchpot  clause  in  a  settlement,  in  the  absence  of  any 
words  in  the  articles  indicating  the  intention  of  the  parties  to  in- 
troduce such  clause:  Lees  v.  Lees,  5  I.  R.  Eq.  549. 

Under  an  executory  agreement  to  grant  a  lease  of  an  hotel  with 
general  and  usual  covenants,  clauses,  and  provisions,  it  was  held, 
under  the  circumstances,  that  the  lease  ought  to  contain  a  power  of 
re-entry  on  the  lessee's  becoming  bankrupt,  or  taking  the  benefit  of 
any  Insolvent  Act:  Haines  v.  Burnett,  27  Beav.  500. 

In  a  recent  case,  it  has  been  held  by  the  Lords  Justices  reversing 
the  decision  of  Bacon,  V.-C.  (reported  19  L.  R.  Eq.  591), 
*  that  under  an  agreement  for  a  lease  to  contain  "  all  usual  [  *  47  ] 
and  customary  mining  clauses,"  the  landlord  was  not  enti- 
tled to  have  inserted  in  the  lease  a  proviso  for  re-entry  on  breach 
of  any  of  the  covenants  by  the  lessee,  or  otherwise  than  on  non- 
payment of  rent:  Hodgkinson  v.  Crowe,  10  L.  R.  Ch.  App.  022. 

In  carrying  into  effect  executory  trusts,  the  question  sometimes 
arises  whether  tenants  for  life  are  or  are  not  to  be  made  dispunish- 
able for  waste.  It  seems,  however,  to  be  now  settled  that  where, 
in  order  to  give  eflPect  to  the  general  intention,  an  estate  of  inherit- 
ance is  cut  down  to  an  estate  for  life,  the  Court,  in  order  to  giv© 

115 


*  48  LORD  GLENORCHY  V.  BOSVILLE, 

the  holder  of  such  life  estate  the  utmost  power  over  the  property 
consistent  with  his  estate,  makes  him  dispunishable  for  waste. 
Leonard  \.  Earl  of  Sussex,  2  Vern.  526;  Woolmore  v.  Burrows.  1 
Sim.  512;  Bankes  v.  Le  Despencer,  10  Sim.  576;  11  Sim.  508; 
White  V.  Briggs,  15  Sim.  17;  2  Ph.  583;  Sackville-West  v.  Viscount 
Holmesdale,  4  L.  E.  Ho.  Lo.  543. 

Where,  however,  a  settlement  has  been  directed  to  be  made  upon 
persons  in  succession,  expressly  for  life,  with  remainders  over  in 
tail,  the  Court  will  not  insert  a  clause  rendering  the  successive 
tenants  for  life  dispunishable  for  waste,  although  the  insertion  of 
usual  and  proper  provisions  for  giving  effect  to  the  intentions  of 
the  person  directing  the  settlement  be  authorised:  Davenjyort  v. 
Davenport,  1  H.  &  M.  775.  Higginsonv.  Barneby,  2  Sim.  &  S.  516; 
Sackville-  West  v.  Viscount  Holmesdale,  4  L.  R.  Ho.  Lo.  543. 

Nor  will  it  do  so  where  an  executory  trust  for  the  settlement  of 
freehold  estates  in  "  strict  settlement "  directs,  either  expressly  or 
by  reference  to  the  trusts  of  other  property,  that  certain  persons 
shall  take  life  estates:  Stanley  v.  Coulthurst,  10  L.  R.  Eq.  250, 
where  the  cases  are  fully  explained  in  the  judgment  of  Sir  B.  Malins, 
V.  C. 

And  where  a  settlement  of  land  has  been  directed  to  be  made 
upon  a  woman  on  marriage,  for  her  life  with  a  restraint  upon  antici- 
pation, it  has  been  held  that  no  clause  should  be  added  to  the  settle- 
ment, making  her  unimpeachable  for  waste,  inasmuch  as  a  life  es- 
tate without  impeachment  of  waste  would  be  inconsistent  with  the 
restraint  on  anticipation :   Clive  v.  Clive,  7  L.  R.  Ch.  App.  433. 

But  even  in  the  absence  of  an  express  direction,  an  intention  that 
successive  tenants  for  life  should  be  made  dispunishable  for  waste, 
may  be  implied.  Thus,  if  in  a  will,  directing  a  settlement  to  be 
made,  the  tenants  for  life  are  made  dispunishable  for  waste,  al- 
though, by  a  codicil,  a  difPerent  settlement  is  directed  to  be  made, 
if  the  will  is  in  other  respects  referred  to  as  the  model  or 
[  *48  ]  example  to  be  followed,  its  *  provisions  will  not  be  disre- 
garded, and  will,  at  any  rate,  where  there  is  full  discretion 
given  to  the  trustees  as  to  the  insertion  of  powers,  provisoes,  decla- 
rations, and  agreements,  justify  the  limitation  of  life  estates  in  the 
settlement  directed  by  the  codicil,  with  the  same  provisions  as  to 
waste  as  were  given  by  the  will :  Sackville-  West  v.  Viscount  Holmes- 
dale,  4  L.  R.  Ho.  Lo.  543,  576. 

Where  a  settlement  is  directed  to  be  made  upon  a  woman  to  her 
separate  use  to  the  exclusion  of  her  husband,  a  clause  against  anti- 
cipation will  be  added.  Turner  v.  Sargent,  17  Beav.  515;  Stanley 
V.  Jackman,  23  Beav.  450;  Re  DunnilVs  Trusts,  6  I.  R.  Eq.  322; 
Symonds  v.   Wilkes,  1 1  Jur.  N.  S.  659. 

Under  Lord  Cramvortli's  Act   (23  &   24  Vict.   c.    145),  certain 
powers  commonly  inserted  in  settlements,   mortgages,  and  wills, 
were,  in  the  absence  of  any  directions  to  the  contrary,  given  to  trus- 
tees, mortgagees,  and  others.     Parts  IL  and  III.  (ss.  11-30). 
116 


LORD  GLENORCIIY  V.  BOSVILLE.  *  49 

These  parts  andsections  have  been  repealed  by  the  Conveyancing 
and  Law  of  Property  Act,  1881  (44  &  45  Vict.  c.  41),  sect.  71, 
subs.  1. 

Subs.  2,  however,  preserves  to  the  full  extent  the  power  of  sale 
given  by  Lord  Cramvwth^s  Act  in  cases  of  mortgages  prior  to  1882. 
See  Conveyancing  Acts  by  ^\'olstenholme  and  Turner,  8rd  ed.  citing 
Quilter  v.  Mapleson,  9  Q.  B.  D  675,  677. 

Parts  L  and  IV,  of  Lord  CranwcrrWs  Act  (23  &  24  Vict.  c.  145) 
have  been  repealed  by  sect.  64  of  the  Settled  Land  Act,  1882  (45 
&  46  Vict.  c.  38). 

The  Settled  Estates  Amendment  Act,  1877  (40  &  41  Vict.,  c.  18), 
commencing  on  the  1st  of  November,  1877,  repealing  and  consoli- 
dating similar  Acts,  viz.,  the  Act  to  Facilitate  Leases  and  Sales  of 
Settled  Estates  (19  &  20  Vict.  c.  120);  the  Act  to  Amend  and  ex- 
tend the  Settled  Estates  Act  of  1856  (21  &  22  Vict.  c.  77);  the  Act 
to  Further  Amend  the  Settled  Estates  Act  of  1856  (27  &  28  Vict. 
c.  45);  the  Leases  and  Sales  of  Settled  Estates  Amendment  Act, 
1874  (37  &  38  Vict.  c.  33),  and  the  Settled  Estates  Act,  1876  (39  & 
40  Vict.  c.  30),  gives  the  Court  power  to  authorize  leases  of  settled 
estate,  ss.  4-12,  or  to  vest  such  powers  in  trustees,  ss,  13,  14  15,  and 
also  gives  the  Court  power  to  authorize  sales  of  settled  estate,  and 
timber,  s.  16.  It  also  gives  power  in  the  case  of  settlements  made 
after  the  1st  of  November,  1856,  to  tenants  for  life,  or  for  a  term  of 
years  determinable  with  a  life  or  lives  or  for  any  greater  estate 
(unless  forbidden  by  the  settlement),  and  to  tenant  by  the  courtesy, 
or  in  dower,  or  in  right  of  a  wife  seised  in  fee,  icithout  application 
to  the  Court  to  grant  leases  for  twenty-one  years,  except  of  the 
principal  mansion  house  and  demesnes,  ss.  46,  47,  48. 

*  By  45  &  46  Vict.  c.  38,  extensive  general  powers  of  sale,  [  *  49  ] 
enfranchisement,  exchange,  partition,  and  leasing,  and  also 
special  powers  are  given  to  tenants  for  life,  amongst  whom  are 
included  many  limited  owners  (see  s.  2,  sub-s.  5;  ss.  58,  59,  00,  61, 
62)  of  settled  estates. 

Rectification  of  Settlement.^ — If  a  settlement  directed  to  be  made 
by  a  testator  is  improperly  framed,  it  may,  as  in  Lord  Glenorchy  v. 
Bosville,  be  rectified  by  the  will;  but,  with  regard  to  a  settlement 
agreed  to  be  made  by  articles,  if  both  articles  and  settlement  are 
made  before  marriage,  the  settlement  will  not  in  general  be  controlled 
by  the  articles,  because,  as  observed  by  Lord  Talbot  in  the  principal 
case  of  Legg  v.  Goldivire,  "when  all  parties  are  at  liberty,  the  settle- 
ment will  be  taken  as  a  new  agreement." 

And  an  agreement  of  an  informal  character  which  would  have  been 
binding  if  marriage  had  taken  place  immediately  on  the  faith  of 
such  a  document  only,  will  be  considered  to  be  superseded  by  a 
formal  document  prepared  before  the  marriage,  which  does  not  take 
place  until  after  a  considerable  time  has  elapsed.  See  In  re  Bad- 
cock,  17  Ch.  D.  361. 

117 


*  50  LORD  GLENORCHY  V.  BOSVILLE. 

Evidence  is,  however,  admissible  to  show  that  articles  constituted 
the  tinal  agreement  between  the  parties,  and  that  the  discrepancy 
between  the  articles  and  settlement  arose  from  mistake,  and  upon 
this  being  proved  the  Court  will  rectify  the  settlement,  and  make  it 
conformable  to  the  real  intention  of  the  parties:  Bold  v.  Hutchinson, 

5  De  G.  Mac.  &  G.  558,  568;  but  "in  order  to  justify  the  C^mrt  in 
taking  such  a  course,  it  is  obvious  that  a  clear  intention  must  be 
proved;  it  must  be  shown  that  the  settlement  does  not  carry  into 
effect  the  intention  of  the  parties.  If  there  be  merely  evidence  of 
doubtful  or  ambiguous  words  having  been  used,  the  settlement  it- 
self is  the  construction  which  the  parties  have  put  upon  those 
doubtful  or  ambiguous  words:"  per  Lord  Cottenham,  C.,  in  The 
Marquis  of  Breadalbane  v.  The  Marquis  of  Chandos,  2  My.  &  Cr.  739. 

The  Court  will  only  rectify  a  marriage  settlement  when  the  mis- 
take is  shown  to  be  common  to  both  parties  The  Earl  of  Bradford 
V.  The  Earl  of  Romney,  30  Beav.  431;  Bentley  v.  Mackay,  31  Beav. 
143;  Sells  v.  Sells,  1  Drew.  &  Sm.  42;  Thompson  v.  Whitmore  1  J. 

6  H.  268),  and  it  is  essential  that  the  extent  of  the  rectification 
should  be  clearl}'  ascertained  and  defined  by  evidence  cotemporaneous 
with  or  anterior  to  the  deed:  The  Earl  of  Bradford  v.  The  Earl  of 
Romney,  30  Beav.  431.  [See  Ludington  v.  Ford,  33  Mich.  123.] 
And  the  Court  will  be  guided  by  what  was  the  intention  of  the 

parties  at  the  time  when  the  deed  was  executed,  and  not  by 
[  *  50  ]  what    would   have  been    their  *  intention    if,  when    they 
executed  it,  the  result  of  what  they  did  had  been  present  to 
their  minds:   Wilkinson  v.  Nelson,  9  AV.  R.  (M.  R. )  393. 

The  Court  acts  with  this  caution  in  rectifying  mari'iage  settle- 
ments, and  in  requiring  proof  of  the  exact  contract  which  the  parties 
intended  to  enter  into,  because  it  is  impossible  to  undo  the  marriage 
or  to  remit  the  parties  to  the  same  positions  they  were  in  before 
the  marriage.  See  Jlainfis  v.  Pepper  ell,  5  L.  R.  Eq.  4,  and  the 
remarks  of  Lord  Romilly,  M.  R. 

A  settlement  will  also  be  rectified  when  an  improper  settlement 
has  been  prepared  by,  or  at  the  instance,  of  one  of  the  parties,  who 
undertook  to  prepare  a  proper  one,  especially  if  it  were  made  con- 
trary to  the  intention  of  the  party  whose  property  was  settled 
(Corley  v.  Lord  Stafford,  1  De  G.  &  J.  238;  Clark  v.  Girdivood,  1 
Ch.  D.  9);  and  a  fortiori  where  the  party  who  prepared  the  settle- 
ment in  his  own  favour  was  the  solicitor  to  the  other  party  and  the 
other  party  and  the  only  one  employed:  Lovesy  v.  Smith,  15  Ch.  D. 
655. 

It  has  recently  been  laid  down  as  the  rule  of  the  Court  that 
where  a  marriage  settlement  or  any  other  contract  is  in  an  improper 
form,  and  not  in  accordance  with  the  intention  of  the  j^arties,  then 
the  intention  of  the  parties  ought  to  be  carried  out  by  putting  the 
instrument  into  that  form  which  will  effectuate  the  intention :  Von 
Witzleben  v.  Siltzer,  15  Ch.  D.  579,  cited;  Welman  \.  IVelman,  15 
Ch.  D.  570. 

118 


LORD  GLENORCIIY  V.  BOSVILLE.  *  51 

Ab  to  cases  -whore  tho  Court  has  rectified  settlements,  see  Ilamil 
V.  White,  3  J.  &  L.  GU5;  Wilson  v.  Wilson,  15  Sim.  487;  1  H.  L. 
Ca.  538;  Walsh  v.  Trevannion,  10  Sim.  178;  Murray  v.  Parker,  19 
Beav.  305;  In  re  Morse's  Settlement,  21  Beav,  174;  Torre  v.  Torre, 
1  Sm.  &  G.  518;  Walker  v.  Armstrong,  21  Beav.  284;  8  De.  G.  Mac. 
&  G.  531;  Natjlor\.  Wright,  5  AV.  R.  770  (V.-C.  S.);  Woltc.vbc.ekv. 
Barroiv,  23  Beav.  423;  Tomlinson  v.  Leir;/i,  14  W.  li.  (M.  li.  )  121 ; 
and  see  The  Earl  of  Malmesbury  v.  The  Countess  of  Mahtiesbury, 
31  Beav.  407,  where  a  power  of  sale  in  a  settlement  was  rectified, 
on  proof  that  it  was  not  conformable  with  the  contract;  King  v. 
King-Harmon,  7  Ir.  R.  Eq.  440,  where  a  settlement  was  reformed, 
by  making  the  trusts  of  a  term  provide  a  portion  for  a  daughter, 
the  only  issue  of  the  marriage,  of  the  amount  stated  in  the  articles 
for  one  younger  child. 

As  to  cases  where  the  Court  has  refused  to  rectify  settlements, 
see  Hoivkins  v.  Jackson,  2  Mac.  &  G.  372;  White  v.  Anderson,  1 
Ir.  Ch.  Rep.  419;  Brougham  v.  Squire,  1  Drew.  151;  Lloyd  v. 
Cocker,  19  Beav.  140;  Ftjfe  v.  Arbuthnot,  1  De  G.  &  Jo.  400;  Elwes 
V.  Elwes,  2  Giff.  545;  9  W.  R.  (L.  J.)  820;  Sells  v.  Sells,  1  Drew. 
&  Sm.  42;  Fowler  v.  Fowler,  4  De  G.  &  Jo.  250;  Jenner 
*  v.  Jenner,  0  Jur.  (N.  S.)  008;  8  W.  R.  (V.C.  S.)  537;  [  ^'  5i;| 
MacCormack  v.  MacCormack,  11  L.  R.  Eq.  130. 

Where,  however,  the  settlement,  though  made  before  marriage,  is 
expressly  mentioned  to  be  made  in  pursuance  or  in  jierformanoe  of 
the  marriage  articles,  the  settlement  will  be  rectified  by  them,  and 
it  will  not  be  necessary  to  resort  to  evidence:  West  v.  Errissey,  2  P. 
Wms.  349;  3  Bro.  P.  C.  327;  Bold  v.  Hutchinson,  5  De  G.  Mac.  & 
G.  508. 

AVhero  the  settlement  is  made  after  marriage  it  will  in  all  cases, 
whether  it  is  mentioned  to  be  made  in  pursuance  or  performance  of 
articles  or  not,  be  conti-olled  and  rectified  by  them.  These  distinc- 
tions as  to  rectifying  settlements  by  articles  (subject  to  the  qualifi- 
cations laid  down  by  Lord  Cranivorth,  C,  in  Bold  v.  Hufcliinson,  5 
Do  G.  Mac.  &  G.  558,  508)  are  well  stated  by  Lord  Talbot  in  Legg 
V.  Goldwire:  see  also  Honor  v.  Honor,  2  P.  Wms.  123;  Roberts  v. 
Kingsley,  1  Ves.  238;  Streatfield  v.  Streat field,  Ca.  t.  Talb.  170; 
Warwick  v.  Waricick,  3  Atk.  293;  Cogan  v.  Duffield,  20  L.  R.  Eq. 
789;  2  Ch.  D.  44. 

A  postnuptial  settlement,  however,  professing  to  bo  madoiu  pur- 
suance of  articles  before  marriage,  especially  after  the  settlement 
has  been  acted  upon  for  a  long  time,  will  not  be  reformed  so  as  to 
make  it  accord  with  a  mere  general  recital  of  the  articles  contained 
in  the  settlement,  the  articles  themselves  not  being  produced:  Mig- 
non  V.  Parry,  31  Beav.  211. 

It  has  been  held  that  a  deed  not  professing  to  be  made  in  pursu- 
ance of  articles  cannot  be  rectified  from  within  itself  as  by  its  own 
recitals  (Coates  v.  Kenva,  7  I.  R.  Eq.  113,  134).  But  see  I)i  re 
DanieVs  Settlement  Trusts,  1  Ch.  D.  375,  where  from  the  recitals,  and 

119 


*  52  LORD  GLENORCHY  V.  BOSVILLE. 

other  parts  of  a  postnuptial  settlement,  the  evident  omission  of  a 
clanse  in  favour  of  daughters  who  had  attained  twenty-one  vs^as  sup- 
plied. 

A  settlement  after  marriage  made  in  pursuance  of  articles  before 
marriage,  although  in  accordance  with  them,  may  be  rectihed  upon 
its  being  proved  that  the  articles  were  not  in  accordance  with  the 
intention  of  the  settlor.     See  Smith  v.  lUffe,  20  L.  R.  Eq.  666. 

Courts  of  equity  will  not  reform  a  voluntary  deed  as  against  the 
grantor  {PhilUpson  v.  Kerry,  32  Beav.  628;  Broun  v.  Kennedy,  33 
Beav.  133;  Lister  v.  Hodgson,  4  L.  R.  Eq.  30,  34;  but  see  Thomjison 
V.  Whitmoy^e,  1  J.  «fe  H.  268),  nor  will  they  decree  a  settlement  as 
against  purchasers  for  valuable  consideration  (amongst  whom  mort- 
gagees are  included),  without  notice  of  the  articles:  West  v.  Errissey, 
2  P.  Wms.  349;  Poioell  v.  Price,  2  P.  Wms.  535;  Warimcky.  War- 
wick, 3  Atk.  291. 

A  settlement,  however,  will  be  decreed,  against  pur- 
[  *  52  ]  chasers  with  *  notice  of  the  articles ;  Davies  v.  Davies,  4 
Beav.  54,  overruling  the  decision  of  Lord  Northington  in 
Cordwell  v.  Mackrill,  2  Eden,  344,  secus,  according  to  Sir  Edward 
Sugden,  L.  C,  of  Ireland,  "  after  a  lapse  of  time,  where  there  is  any- 
thing so  equivocal  or  ambiguous  in  the  articles  as  to  render  it  doiibt- 
ful  how  they  ought  to  be  effectuated:  "  Thompson  v.  Simpson,  1  D. 
&  W.  491.     See  also  Abbot  v.  Geraghty,  4  Ir.  Ch.  Rep.  15,  24,  25. 

It  may  here  be  mentioned,  that  in  some  cases  of  rectification,  in 
oi'der  to  get  the  legal  estate,  a  ro-conveyance  is  directed  by  decree 
( Malmesbury  v.  Malmeshury,  31  Beav.  407,  419),  but  a  settlement 
will  sometimes  be  rectified  by  a  decree  merely,  without  the  parties 
being  put  to  the  expense  of  a  fresh  deed  (Tebbitt  v.  Tebbitt,  1  De 
G.  &  Sm.  506;  Stock  v.  Viuing,  25  Beav.  235;  White  v.  White,  15 
L.  R.  Eq.  247;  Hanley  v.  Pearson,  13  Ch.  D.  545).  It  seems  the 
Court  will  now  rectify  a  settlement  upon  a  petition:  In  re  Morse'' s 
Settlement,  21  Beav.  174;  In  re  Hoare's  Trusts,  4  Giff.  254;  Lewis 
V.  Hillman,  3  Ho.  Lo.  607;  In  re  Bird's  Tinists,  3  Ch.  D.  214.  And 
see  Li  re  De  la  Touche's  Settlement,  10  L.  R.  Eq.  599.  There, 
although  the  fact  of  the  mistake  was  not  admitted  by  all  parties,  the 
Court,  upon  the  evidence  on  a  Petition,  filed  under  the  Trustee  Re- 
lief Act  (10  &  11  Vict.  c.  96),  did  not  order  the  Petition  to  be  rec- 
tified, but  prefacing  the  order  with  a  declaration,  that  it  appeared 
the  words  in  question  were  inserted  by  mistake,  made  an  order  for 
distribution  of  the  fund  as  if  the  clause  had  not  been  inserted.  See, 
however,  In  re  Malet,  30  Beav.  407. 

A  settlement,  whether  made  in  pursuance  of  articles  or  not,  may 
be  rectified  by  the  uncontradicted  evidence  of  the  Plaintiff  alone; 
Smith  V.  Iliffe,  20  L.  R.  Eq.  166;  Cook  v.  Fearn,21  W.  R.  211; 
Edwards  v.  Bingham,  28  W.  R.  89;  White  v.  White,  15  L.  R.  Eq^ 
247;  Hanley  v.  Pearson,  13  Ch.  D.  549;  Welman  v.  Welman,  15 
Ch.  D.  570;  Lovesy  v.  Smith,  15  Ch.  D.  655. 

The  Court  has   no  jurisdiction,  having  regard  to  ss.  40  &  47  of 

120 


LORD  GLENORCIIY  V.  BOSVILLE.  *  52 

the  Fines  and  Recoveries  Act  (3  &  4  Will.  4,  c.  74),  to  rectify  on  the 
ground  of  mistake,  a  deed  which  has  been  enrolled  as  a  disentailing 
assurance  under  the  Act,  although  the  rectification  asked  is  not  in 
the  disentailing  part  of  the  deed,  but  in  a  resettlement  added  to  it, 
which  might  have  been  effected  by  a  separate  unenrolled  deed:  Hall- 
Dare  V.  Hall- Dare,  29  Ch.  D.  133. 

[Doctrine  of  Executed  and  Executory  Trusts  Restated. — A  trust 
is  called  executory,  not  because  the  performance  of  the  trust  lies  in 
the  future,  but  because  the  trust  instrument  is  to  be  moulded  into 
form  and  perfected  according  to  the  outlines  or  instructions  made  or 
left  by  the  settlor  or  testator.  Perry  on  Trust,  sec.  359.  And  in 
construing  executory  trusts  the  Court  exercises  a  large  authority  in 
subordinating  the  language  to  the  intent. 

As  soon  as  the  settlement  of  conveyance  is  made  the  trust  becomes 
executed  and  it  is  thereafter  governed  by  the  rules  of  an  executed 
trust.  A  trust  is  also  executed  when  no  act  is  necessary  to  give  it 
effect,  and  the  trust  is  fully  and  finally  declared  in  the  instrument. 
It  is  to  be  noted  that  in  executory  trusts  the  intention  of  the  settlor 
governs,  and  there  must  be  some  opportunity  for  an  exercise  of  judg- 
ment in  determining  his  intention;  and  as  executory  or  imperfect 
trusts  are  only  directory,  a  Court  of  equity  will  determine  the  inten- 
tion of  the  settlor  from  an  examination  of  the  whole  instrument. 
An  executory  agreement  to  create  a  trust  will  not  be  enforced. 
Webb's  Estate,  49  Cal.  542.  Nor  an  executed  trust,  if  without  con- 
sideration. Badgley  v.  Votrain,  08  111.  25.  In  marriage  articles  a 
settlement  will  be  made  in  accordance  with  the  intentions  of  the 
parties  if  it  is  possible. 

In  the  case  of  an  executory  trust  created  by  will,  there  is  no  pre- 
sumption as  to  the  intention  of  the  testator. 

A  Court  of  equity  will  entertain  jurisdiction  in  the  case  of  exe- 
cutory trusts  for  the  purpose  of  carrying  them  out,  and  also  for  see- 
ing that  the  instrument  which  purports  to  fulfil  the  intention  of  the 
settlor  really  does  so,  and  for  reforming  conveyances  which  have 
been  improvidently  drawn  and  by  which  the  object  sought  to  be 
reached  by  the  executory  minute  or  draft  have  not  been  attained.] 


121 


*  53  KEECH  V.  SANDFORD. 


[  *  53  ]  *  KEECH  7).  SANDFORD. 


October  31st,  1726. 

[kepokted  select  cases  in  chancery,  61.] 

Renewal  of  a  Lease  by  a  Trustee.] — A.  beivgjjossessed  of  a  Lease  of 
a  Market  bequeathed  it  to  B.  in  trust  for  an  infant.  B.,  before  the 
expiration  of  the  term,  apj^lied  to  the  Lessor  for  a  reneival  for  the 
beriefit  of  the  Infant.  The  Lessor  refused  to  grant  such  reneival, 
whereiqoon  B.  got  a  Lease  made  to  Jdmself  Held,  that  B.  icas 
Trustee  of  the  Lease  for  the  Infant,  and  must  assign  .the  same  to 
him  and  account  for  the  profits,  but  that  he  ^uas  entitled  to  be  indem- 
nified from  the  Covenants  contained  inthe Lease. 

A  PERSON  being  possessed  of  a  lease  of  the  profits  of  a  market, 
devised  bis  estate  to  a  trustee  in  trust  for  the  infant.  Before  the 
expiration  of  the  term  the  trustee  applied  to  the  lessor  for  a  re- 
newal, for  the  benefit  of  the  infant,  which  he  refused,  in  regard 
that,  it  being  only  of  the  profits  of  a  market,  there  could  be  no  dis- 
tress, and  must  rest  singly  in  covenant,  which  the  infant  could  not 
enter  into. 

There  was  clear  proof  of  the  refusal  to  renew  for  the  benefit  of 
the  infant,  on  which  the  trustee  gets  a  lease  made  to  himself. 

Bill  is  now  brought  [by  the  infant]  to  have  the  lease  assigaed  to 
him,  and  for  an  account  of  the  profits,  OU'  this  principle,  that  wher- 
ever a  lease  is  renewed  by  a  trustee  or  executor,  it  shall  be  for  the 
benefit  of  cestui  que  use,  which  principle  was  agreed  on  the  other 
side,  though  endeavoured  to  be  difPerenced  on  account  of  the  express 
proof  of  refusal  to  renew  to  the  infant. 

Lord  Chancellor  King. — T  must  consider  this  as  a  trust 
[  *  54  ]  for  the  infant,  for  I  very  well  see,  if  a  trustee,  on  *  the  re- 
fusal to  renew,  might  have  a  lease  to  himself,  few  trust  es- 
tates would  be  renewed  to  cestui  que  use.  Though  I  do  not  say 
there  is  a  fraud  in  this  case,  yet  he  [the  trustee]  should  rather  have 
let  it  run  out  than  to  have  had  the  lease  to  himself.  This  may 
122 


KEECII  V.  SANDFORD.  *  54 

seem  bard,  that  the  trustee  is  the  only  person  of  all  mankind  who 
might  not  have  the  lease  ;  but  it  is  very  proper  that  rule  should  be 
strictly  pursued,  and  not  in  the  least  relaxed  ;  for  it  is  very  obvious 
what  would  be  the  consequences  of  letting. trustees  have  the  lease  on 
refusal  to  renew  to  cestei  que  iise. 

So  decreed,  that  the  lease  should  be  assigned  to  the  infant,  and 
that  the  trustee  should  be  indemnified  from  any  covenants  com- 
prised in  the  lease,  and  an  account  of  the  profits  made  since  the  re- 
newal. 


Keech  v.  Sandford,  sometimes  called  the  Rumford  Market  Case, 
is  usually  cited  as  the  leading  authority  on  the  doctrine  of  con- 
structive trusts  arising  upon  the  renewal  of  a  lease  by  a  trustee  or 
executor  in  his  own  name  and  for  his  own  benefit.  The  rule  here 
inflexibly  laid  down  by  Lord  King  has  ever  since  been  invariably 
followed  ;  viz.  that  a  lease  renewed  by  a  trustee  or  executor,  in  his 
own  name,  even  in  the  absence  of  fraud  and  upon  the  refusal  of  the 
lessor  to  grant  a  new  lease  to  the  cestui  que  trust,  shall  be  held  upon 
trust  for  the  person  entitled  to  the  old  lease.  See  Fitzgibbon  v. 
Scanlan,  1  Dow.  201,269;  Raivev:  Chichester,  Amb.  715;  S.  C,  1 
Bro.  C.  C.  198  n.;  2  Dick.  480;  Pickering  v.  Voicles,  1  Bro.  C.  C. 
198;  Pierson  v.  Shore,  1  Atk.  480;  Nesbitt  v.  Tredennick,  1  Ball  & 

B.  46;  Abney  v.  Miller,  2  Atk.  597;  Edwards  \.  Lewis,  3  Atk.  538; 
Killick  V.  Flexney,  4  Bro.  C.  C.  161;  Moody  v.  Matfheius.  7  Ves.  174; 
James  v.  Dean,  11  Ves.  383;  Parker  v.  Brooke,  9  Ves.  583;  Lovatt 
V.  Knipe,  12  Ir.  Eq.  Rep.  124;  Kendall  v.  Marsters,  2  De  G.  F.  & 
Jo.  200;  Li  re  Morgan,  18  Ch.  D.  93;  see  also  Walley  v.  Walley,  1 
Vern.  484,  and  Holt  v.  Holt,  1  Ch.  Ca.  190,  which  seems  to  be  the 
oldest  case  upon  the  subject. 

[  Constructive  tj'usts  are  those  which  arise  purely  by  construction 
of  equity  and  are  entirely  independent  of  any  actual  or  presumed 
intention  of  the  parties. 

Equity  makes  use  of  the  machinery  of  a  trust  for  the  purpose  of 
affording  redress  in  cases  of  fraud. 

As  when  a  party  has  acquired  the  legal  title  to  property  by  un- 
fair means  he  is  deemed  to  hold  it  in  trust  for  the  injured  party. 

The  pai'ty  guilty  of  the  fraud  is  called  a  trustee  ex  malifacio. 
Squires  Appeal,  20  P.  F.  Smith,  266;  Cburch  v.  Ruland,  14  P.  F. 
Smith,  443;  R.  R.  Co.  v.  Elliott,  57  N.  H.  397;  Staats  r.  Bergen,  2 

C.  E.  Green,  v97.] 

And  in  a  case  in  Ireland  the  rule  was  held  to  apply  to  an  adminis- 
tratrix of  a  deceased  tenant  from  year  to  year,  who  upon  obtaining 
a  new  tenancy  from  year  to  year,  was  held  a  trustee  thereof  for  the 
next  of  kin  of    the  intestate  :    Kelly  v.  Kelly,  8    I.    R.    Eq.  430. 

123 


*  55  KEECH  V.  SANDFORD. 

[As  to  executors  and  administrators,  see  Savage  v.  Williams,  15 
La.  Ave.  250;  Farron  v.  Farley,  3  S.  C.  11;  Colgate  v.  Colgate,  28 
N.  J.  Eq.  372;  Jewett  v.  Miller,  10  N.  Y.  402;  Miles  v.  Wheeler, 
43  111.  123;  Kruse  v.  Stephens,  47  111.  112;  Woodruff  v.  Cook,  2 
Edw.  ch.  259;  Beeson  v.  Beeson,  9  Barr,  279;  Eogers  v.  Rogers,  3 
Wend.  503;   VanEpps  v.  VanEpps,  9  Paige,  237;  Brickenridge  v. 

Holland,  2  Blackf.  377;  Peyton  v.  Enos,  16  La.  An.  135.] 
[  *  55  ]  There  the  widow  and  *  administratrix  of  a  tenant  from  year 
to  year,  of  a  holding  in  Ulster,  continued  in  possession  for 
two  years  after  his  death,  and  the  tenancy  having  been  then  deter- 
mined by  notice  to  quit,  offered  no  resistance  to  an  ejectment 
brought  by  the  landlord,  who  took  formal  possession,  but  left  her 
in  undisturbed  possession  at  the  same  rent.  It  was  held  by  Chat- 
terton,  V.-C,  that  though  there  was  no  fraud  in  the  transaction,  the 
new  tenancy  was  a  graft  on  the  old  one  for  the  benefit  of  the  next 
of  kin  of  the  intestate,  even  though  there  was  a  custom  on  the  es- 
tate that  a  holding  should  not  be  divided  amongst  the  next  of  kin 
of  an  inliestate,  but  be  given  to  the  widow  if  a  desirable  tenant.  See 
also  M'Cracken  v.  M'Clelland,  11  Ir.  R.  Eq.  172. 

The  same  rule  applies  also  to  an  executor  de  son  tort  renewing  a 
lease  in  his  own  name  (Mulvany  v.  Dillon,  1  Ball  &  B.  409;  Griffin 
V.  Griffin,  1  S.  &  L.  352),  and  to  a  husband  obtaining  a  renewed 
lease  in  his  own  name,  by  the  surrender  of  the  old  lease  which  he 
had  assigned  to  trustees  in  trust  for  the  separate  use  of  his  wife. 
See  In  re  Lulham,  Brenton  v.  Liilham,  W.  N.,  August  9th,  1884,  p. 
186,  where  it  was  held  in  such  case  that  the  executors  of  the  hus- 
band wei^  trustees  for  the  benefit  of  the  widow,  and  that  the  evi- 
dence showed  that  the  husband  intended  to  make  her  a  present  of 
the  fine  paid  and  all  outgoings. 

The  Court  of  Chancery  moreover  has  refused  to  appoint  the  les- 
see of  lands  belonging  to  a  charity  to  be  a  trustee  of  the  charity 
unless  he  gave  up  the  lease.  See  Foord  v.  Baker,  27  Beav.  193. 
There  a  scheme  made  in  1855  provided,  that  no  person  should  act 
as  trustee  of  the  charity  who  should  hold  or  occupy  any  part  of  the 
charity  property.  At  that  time  one  of  the  trustees  held  a  small 
piece  of  charity  land  under  a  twenty-one  years'  lease  granted  in 
1847  by  public  tender.  It  was  held  by  Sir  John  Romilly,  M.  R., 
that  he  must  either  give  up  the  lease  or  the  trusteeship. 

The  ground  of  decreeing  renewals  by  trustees  and  executors  to 
enure  to  the  benefit  of  cestui  que  trusts  rests  upon  public  policy  to 
prevent  persons  in  such  situations  from  acting  so  as  to  take  a  bene- 
fit to  themselves :  Griffin  v.  Griffin,  1  S.  &  L.  354,  per  Lord  Redes- 
dale;  and  see  Bleimtt  v.  Alillett,  1  Bro.  P.  C.  367,  Toml.  ed. 

[The  trustee  is  in  such  a  position  of  confidence  and  influence  over 
the  cestui  que  trust  that  the  bargain  or  contract  will  be  either  void 
or  he  will  be  a  constructive  trustee  at  the  election  of  the  cestui  que 
trust.  Unless  the  trustee  can  show  that  the  contract  was  entirely 
fair  and  advantageous  to  the  cestui  que  trust:  Shelton  v.  Homer,  5 
124 


KEECH  V.  SANDFORD.  *  56 

Met.  462;  Johnson  v.  Blackman,  31  Conn.  843;  Freeman  v.  Har- 
wood,  41)  Me.  195;  Painter  v.  Henderson,  7  Barr,  48;  Scroggins  v. 
McDougald,  8  Ala.  882;  Ziiumerman  r.  Harmon,  4  Itich.  Eq.  165; 
Child  V.  Bruce,  4  Paige,  309;  Michoud  v.  Girod,  4  How.  508.] 

So,  if  a  person  having  a  limited 'interest  in  a  renewable  lease,  as  a 
tenant  for  life,  renews  it  in  his  own  name,  he  will  be  held  a  trustee 
for  those  entitled  in  remainder  to  the  old  lease  {Rawe  v.  Chichester, 
Amb.  715;  S.  C.  5  Dick.  480;  1  Bro.  C.  C.  198  n.;  Taster  v.  Mar- 
riott, Amb.  668;  Owen  v.  Williams,  Amb.  784;  Coppin  v.  Ferny - 
hough,  2  Bro.  C.  C.  291;  Boivles  v.  Steivart,  1  S.  &  L.  209; 
Randall  v.  Russell,  8  Mer.  190;  *  Giddings  v.  Giddings,  3  [  *  56  ] 
liuss.  241;  Nesbitt  v.  Tredennick,  1  Ball.  &  B.  46;  Eyre  v. 
Dolphin,  2  Ball  &  B.  290;  Tanner  v.  Elworthy,A:  Beav.  487;  Waters 
V.  Bailey,  2  You.  &  Coll.  C.  C.  224;  Buckley  \.  Lanauze,  L.  &  G.  t. 
Plunk.  827;  Hill  v.  Mill,  12  Ir.  Eq.  Eep.  107;  Mill  v.  Hill,  3  H.  L. 
Cas.  828;  Trumper  v.  Trumper,  14  L.  R.  Eq.  295;  8  L.  R.  Ch.  App. 
870;  and  O'Brien  v.  Egan,  5  L.  R.,  Ir.  633).  And  the  result  is  the 
same,  in  the  case  of  a  tenant  for  life  under  a  will,  obtaining  a  new 
lease  even  although  the  original  lease  may  have  expired  during  the 
life  of  the  testator,  who  had  continued  to  hold  merely  as  tenant 
from  year  to  year.  See  James  Dean,  11  Ves.  388;  S.  C,  15  Ves. 
236,  where  a  testator  bequeathed  leaseholds  for  years  determinable 
upon  lives  to  his  widow  (who  was  his  residuary  legatee  and  execu- 
trix) for  life,  with  remainder  over;  the  term  expired  during  the 
testator's  life,  who  continued  to  hold  as  tenant  from  year  to  year:  a 
subsequent  lease,  obtained  by  his  widow  was  held  to  be  subject  to 
the  trusts  of  the  will,  as  the  residue  of  the  term  at  his  death,  if 
any,  however  short,  would  have  been. 

If,  however,  the  testator  bo  merely  a  tenant  at  will  or  at  sufferance 
of  leaseholds  upon  renewal  of  the  lease  by  his  executor,  he  would 
not  be  a  trustee  for  the  persons  to  whom  the  leaseholds  were  be- 
queathed in  remainder,  for  as  a  tenancy  at  will  or  at  sufiferance 
would  have  determined  upon  the  death  of  the  testator,  no  interest 
would  have  passed  to  them  by  the  will:  James  v.  Dean.  11  Yes. 
391,  392. 

But  an  executor  in  such* a  case,  although  the  devisees  of  the 
lease  could  not  claim  the  benefit  of  the  renewal,  would  hold  it  as  a 
trustee  for  the  general  estate.  Thus  in  the  case  of  James  v.  Dean, 
11  Yes.  383,  Lord  Eldon  said  he  was  inclined  to  think,  that,  had 
the  widow  not  been  residuary  legatee,  she  would,  in  such  a  case, 
have  been  a  trustee  for  the  residuary  legatee.  "  The  question,"  ob- 
served his  Lordship  (see  11  Yes.  393),  "is  new,  whether  an  execu- 
trix, dealing  with  the  opportunities  which  she  derives  by  her  suc- 
cession without  title  to  the  estate  a  tenant  by  sufferance  or  at 
will  had  held,  is  a  trustee  for  the  person, "who  cannot  say  he  took  an 
interest  under  the  will,  or  whether  it  is  to  be  said  against  her  only, 
that  the  advantage  she  made  of  those  opportunities  should  be  for 
the  general  estate.     The  result  is  this:  I  think  it  is  impossible  she 

125 


*  57  KEECH  V.  SANDFORD. 

could  hold  it  for  herself.  Not  applying  it  to  this  case,  but  suppos- 
ing another  person,  not  the  wife,  was  residuary  legatee,  the  ques- 
tion, I  should  think,  would  be  in  favour  of  that  other  residuary 
legatee,  being  a  casual  advantage  from  the  dealing  of  the  execu- 
trix." [The  doctrine  of  construc'tive  trusts  is  well  established  in  the 
United  States,  see,  King  v.  Cushman,  41  111.  31;  Frank's  Appeal,  9 
P.  F.  Smith,  190;  Huson  u  Wallace,  1  Rich.  Eq.  2;  Irwin  v.  Har- 
ris, 6  Ired.  221;  Mathews  ?;.  Dragand,  3  Dess.  25;  Van  Horn  v. 
Fonda,  5  Johns.  Ch.  409;  Holridge  v.  Gilleslie,  2  John.  Ch.  30.] 
See  also  Randall  v.  RusseM,  3  Mer.  190;  MiU  v.  Hill,  3  H. 
[  *  57  ]  L.  Gas.  *  S66;  Archbold  v.  Scully,  9  Ho.  Lo.  Gas.  3G0;  In 
re  Tottenham's  Estate,  16  Ir.  Gh.  Rep.  115. 
Where,  however,  a  testator  believing  that  a  certain  piece  of  land 
(to  which  he  was  really  not  entitled)  was  included'  in  a  lease,  by 
his  will  gave  the  premises  comprised  in  the  lease  to  his  executrix 
for  life,  with  remainders  over,  and  the  executrix  took  a  lease 
of  the  piece  of  land,  it  was  held  that  she  was  not  trustee  for  those 
in  remainder,  but  was  absolutely  entitled  thereto:  Raive  v.  Chiches- 
ter, Amb.  715,  720. 

Although  a  tenant  for  life  of  a  lease  under  a  settlement  be  him- 
self the  author  of  it,  if  he  renew  the  lease  in  his  own  name,  he  will 
be  a  trustee  for  the  parties  interested  under  the  settlement:  Pick- 
ering  v.  Voules,  1  Bro.  G.  G.  197;  Colegrave  v.  Manby.Q  Madd.  72; 
C.S  ,2  Russ.  238;  In  re  Liilham,  Breyiton  v.  Lulham,  W.  N.,  Aug.  9, 
1884,  p.  180.  And  the  fact  of  the  settlement  containing  a  special 
provision  that  a  particular  renewal  shall  enure  for  the  benetit  of 
the  trust,  will  not  prevent  the  application  of  the  general  rule  in  the 
case  of  other  renewals:  Tanner  v.  Elivorthy,  4  Beav.  487. 

By  analogy  to  these  cases,  if  not  under  the  73rd  section  of  the 
Lands  Glauses  Gonsolidation  Act  (8  &  9  Vict.  c.  18),  when  a  tenant 
for  life  receives  a  sum  of  money  for  withdrawing  opposition  to  a 
bill,  and  the  act  then  passes  authorising  the' taking  of  the  land  in 
settlement,  whether  the  land  is  taken  or  not,  and  whether  the  act  is 
proceeded  upon  or  not,  the  money  so  received  must  be  held  for  the 
benefit  of  all  the  parties  interested:  Pole  \.  Pole,  2  D.  &  Sm.  420; 
Re  Duke  of  Marlborough's  Estates,  13  Jur.  738;  Earl  of  Shreicsbury 
V.  No7ih  Staffordshire  Railivay  Company,  1  L.  R.  Eq.  593,  608,  sed 
vide  Ex  parte  Lockwood,  14  Beav.  158;  Ex  j^cirte  The  Rector  of  Lit- 
tle Steeping,  5  Railway  Ga.  207. 

Even  where  a  tenant  for  life  of  renewable  leaseholds  has  a  gen- 
eral power  of  appointment,  which  he  does  not  exercise,  a  renewal  in 
his  own  name  (not  being  an  execution  of  the  power)  will  enure 
over  at  his  death  for  the  benefit  of  the  remainderman.  In  Brook- 
man  V.  Hales,  2  V.  &  B.  45.  [The  instance  which  is  usually  given 
of  a  constructive  trust  is  the  renewal  of  a  lease  by  a  trustee  in  his 
own  name  and  also  with  his  own  funds.  The  renewal  so  named 
will  according  to  the  equitable  doctrine  in  the  case  under  consider- 
ation inure  to  the  benetit  of  the  cestui  que  trust.  As  no  actual 
126 


KEECII  V.  SANDFORD.  *  58 

fraud  exists  the  sole  remedy  is  in  equity:   Yeackol  ?\  Litchfield,  13 
Allen,  417.] 

Upon  the  same  principle  where  the  tenant  for  life,  under  a  de- 
vise, of  Jin  encroachment  upon  the  property  of  the  Crown  in  the 
Forest  of  Dean,  took  under  an  Act  of  Parliament  (1  &  2  Vict.  c.  42) 
for  confirming  the  titles  to  the  encroachments,  a  conveyance  to  her- 
self in  fee,  it  was  held  that  as  the  act  was  intended  only  to  provide 
for  disputes  between  parties  claiming  adversely  the  legal  right 
(speaking  without  regard  to  the  Crown's  title)  to  be  in  possession 
and  treated  as  holders,  the  devisee  had  acquired  the  fee,  not  only 
for  her  own  benefit,  but  also  for  the  benefit  of  those  in  re- 
mainder: Yem  V.  Edwards,  S  K.  &  J.  *  504;  1  De  G.  &  Jo.  [  ^'  58  ] 
598.  On  the  subject  of  encroachments  by  tenants,  see  An- 
dreivs  v.  Hailes,  2  Ell.  &  B.  849;  Kingsmill  v.  Millard,  1 1  Exch.  313. 

As  to  encroachments  by  copyhold  tenants  upon  the  waste  of  the 
manor,  see  Attorney -General  v.  Tomline,  5  Ch.  D.  750. 

And  where  a  person  who  is  trustee  of  property  for  himself  and 
others,  acquires,  under  an  Act  of  Parliament,  upon  the  representa- 
tion that  he  was  solely  entitled,  an  absolute  interest  therein,  he  will 
nevertheless' be  held  a  trustee  for  all  parties  beneficially  interested, 
of  whatever  estate  or  right  he  has  so  acquired  {Cooper  v.  Phibbs,  2 
L.  R.  Ho'.  Lo.  149),  subject  only  to  the  repayment  to  him  by  the 
parties  entitled  under  the  trusts  of  the  moneys  properly  expended 
by  him  in  acquiring  any  additional  rights  and  improving  the  whole. 
lb.  [If  a  trustee  gets  a  lease  that  is  merely  a  graft  on  the  old  one 
it  enures  to  the  trustee  estate:  Davis  v.  Hamlin,  108  111.  39;  Gower 
V.  Andrews,  59  CaL  119.] 

And  in  a  recent  case  where  the  trustees  of  land,  affecting  actual 
ownership,  acquired  from  the  Crown  a  right  of  fishing  in  the  adja- 
cent sea,  it  was  held  by  the  House  of  Lords,  affirming  the  decision 
of  the  Court  of  Session  in  Scotland,  that  the  acquisition  was  secur- 
ed for  the  benefit  of  the  cestui  que  trust:  Aberdeen  Town  Council 
v.  Aberdeen  University,  2  App.  Ca.  544. 

If  one  of  several  persons  jointly  interested  in  a  lease  renew  it  in 
his  own  name,  he  will  hold  in  trust  for  the  others,  accordingr  to  their 
respective  shares.  Thus,  in  Palmer  v.  Young,  1  Vern.  276,  one  of 
three  who  held  a  lease  under  a  dean  and  chapter,  surrendered  the 
old  lease  and  took  a  new  one  to  himself:  the  Court  said  it  should 
be  a  trust  for  all.  See  also  Hamilton  v.  Denny,  1  Ball  &  B.  199; 
Jackson  v.  Welsh,  L.  &  G.  t.  Plunk.  346. 

Where  a  tenant  for  life,  and  a  remainderman  of  a  lease  for  lives, 
take  a  renewal  thereof  to  themselves  and  their  heirs  as  joint  ten- 
ants, though  they  contribute  unequally  towards  the  consideration 
for  the  new  lease,  in  the  absence  of  anything  showing  a  contrary  in- 
tention, their  prior  interests  in  equity  will  remain  unaltered.  See 
Hill  V.  Hill,  8  Ir.  Eq.  140,  622. 

And  if  a  person  jointly  interested  with  an  infant,  renew,  and  the 
renewed  lease  turn  out  not  to  be  beneficial,  the  person  renewing 

127 


*  59  KEECH  V.  SANDFORD. 

must  sustain  the  loss;  if  beneficial,  the  infant  can  claim  his  share 
of  the  benefit  to  be  derived  from  it.  This  is  the  peculiar  privilege 
of  the  unprotected  situation  of  the  infant.  But  to  any  sums  which 
may  have  been  paid  for  the  renewal  of  the  lease,  or  in  consequence 
of  it,  the  infant  must  contribute  his  due  proportion  before  he  can 
claim  any  advantage.  Ex  parte  Grace,  1  B.  &  P.  376.  [If  the  per- 
son interested  with  the  infant  is  his  guardian,  the  dealings  are 
closely  scrutinized  even  after  the  relation  is  terminated:  Smith  v. 
Davis,  49  Md.  470;  Mason  v.  Felton,  13  Pick.  206.  The  guardian 
must  also  account  for  all  the  profits,  Kepler  v.  Davis,  80  Pa.  St. 
153.]        . 

So,  likewise,  if  a  partner  renew  a  lease  of  the  partnership  prem- 
ises on  his  own  account,  he  will,  as  a  general  rule,  he  held  a 
[  *  59  ]  trustee  of  *  it  for  the  firm,  and  there  is  "  no  distinction, 
whether  the  partnership  is  for  a  definite  or  indefinite  pe- 
riod. If  one  partner  might  so  act  in  the  latter  case,  he  might 
equally  in  the  former.  Supposing  the  lease  and  the  partnership  to 
have  different  terms  of  duration,  he  might,  having  clandestinely  ob- 
tained a  renewal  of  the  lease,  say  to  the  other  partner,  '  The  prem- 
ises on  which  we  carried  on  our  trade  have  become  mine  exclusively; 
and  I  am  entitled  to  demand  from  you  whatever  terms  I  think  fit, 
as  the  condition  for  permitting  you  to  carry  on  that  trade  here:  '  "  per 
Sir  William  Grant,  M.  R.,  in  Featherstonhaugh  v.  Fenicick,  17  Ves. 
311,  See  also  Alder  v,  Fouracre,  3  Swanst.  489 ;  Faivcett  v.  White- 
house,  1  Russ.  &  My.  132;  Glegg  v.  Edmofidson,  22  Beav.  125;  8 
De  Q.  Mac.  &  G.  787;  Clements  y.  Hall,  2  De  G.  &  Jo.  173;  re- 
versing S.  a,  24  Beav.  333;  Gordon  v.  Scott,  12  Moo.  P.  C.  C.  1. 

In  Clegg  v.  Fishivick,  1  Mac.  &  G.  294,  the  plaintiff's  husband 
being  engaged  in  partnership  with  other  persons,  they  took  a  lease 
in  1828  of  certain  coal  mines,  for  the  purpose  of  the  partnership. 
He  died  in  1836,  and  the  plaintiff  took  out  letters  of  administra- 
tion. There  was  no  provision  made  for  the  continuance  of  the  part- 
nership with  the  administratrix;  but  it  was  in  fact  carried  on  be- 
tween her  and  the  other  partners  up  to  the  year  1849,  the  same 
partnership  property  being  used  for  the  purposes  of  the  partner- 
ship. In  that  year  the  old  lease  having  expired  a  new  lease  was 
taken  by  some  of  the  other  partners,  without  the  privity  of  the 
plaintiffs.  It  was  held  by  Lord  Cottenham,  C,  that  the  administra- 
trix was  entitled  to  a  Receiver  in  respect  of  the  intestates's  share 
of  the  partnership  including  the  renewed  lease. 

The  rule,  however,  to  be  deduced  from  the  last-mentioned  class 
of  cases  has  been  to  some  extent  departed  from  where  the  trade  or 
business  carried  on  in  connection  with  a  lease  is  one  of  a  specula- 
tive character,  requiring  great  outlay  with  uncertain  returns,  or  at 
any  rate  it  will  not  be  acted  upon  in  favour  of  parties  who  lie  by  in 
order  to  see  how  the  speculation  turns  out.  Thus,  if  in  such  a 
business,  for  instance,  as  a  mining  concern,  the  surviving  partner 
renews  the  lease  in  his  own  sole  name  and  carries  on  the  business 
128 


KKEOII  V.  SANDFORD.  *  60 

with  his  own  capital  and  in  his  own  name,  the  Court  will  not  in 
general  assist  the  representative  of  the  deceased  partner  unless  he 
comes  forward  promptly,  and  is  ready  to  contribut(i  a  due  propor- 
tion of  money  for  the  purpose  of  the  business,  for  it  would  be  un- 
just to  permit  the  executor  of  the  deceased  partner  to  lie  by  and  re- 
main passive  while  the  survivor  is  incurring  all  the  risk  of  loss,  and 
only  to  claim  to  participate  after  the  affairs  have  turned  out 
to  be  prosperous:  per  *  Lord  Cramvorth,  C,  2  Do  G.  &  [  *G0] 
Jo.  186. 

But  this  exception  to  the  rule  does  not  apply  where  the  surviving 
partner  who  renews  the  lease  keeps  the  representative  of  the  de- 
ceased partner  in  ignorance  of  the  real  state  of  the  concern,  for  he 
is  bound  to  disclose  iibcrrimd  fide  every  fact  which  may  enable  the 
representative  to  exercise  a  sound  discretion  as  to  the  course  he 
ought  to  pursue:  Clements  v.  Hall,  2  De  G.  &  Jo.  173,  188. 

If  a  mortgagee  renew  a  lease,  the  renewal  will  be  for  the  benefit 
of  the  raortgagoi',  paying  the  mortgagee  his  charges;  and  per  Lord 
Chancellor  Nottingham,  "  The  mortgagee  hero  doth  but  graft  upon 
his  stock,  and  it  shall  be  for  the  mortgagor's  benefit:  "  Iinshworth''s 
Case,  Freem.  12;  Luckin  v.  Rushicorth,  Rep.  t.  Finch.  892;  S.  C,  2 
Ch.  Rep.  113;  Darrell  v.  Whitchot,  2  Ch.  Rep.  50;  nor  will  the  case 
be  altered  by  the  expiration  of  the  lease  before  renewal :  Rakestraw 
v.  ^reiver,  2  P.  AVms.  510.  Upon  the  same  principle  the  mort- 
gagor of  a  lease  renewable  by  custom,  or  the  assignee  of  the  equity 
of  redemption  subject  to  the  mortgage,  upon  a  purchase  of  the  re- 
version in  fee,  can  only  hold  the  reversion  as  he  would  have  held  a 
renewed  lease,  subject  to  the  mortgage,  as  would  also  a  mortgagee 
of  the  reversion  in  fee:  Leigh  v.  Burnett,  29  Ch.  D.  231.  [The 
renewal  of  leaseholds  is  only  an  example  of  the  general  principle, 
viz.,  that  no  fiduciary  can  gain  any  personal  advantage  touching  the 
subject  of  the  trust,  Hill  on  Trustees,  539  (849,  4th  A.  M.  ed).] 

A  new  lease,  however,  obtained  bona  fide  by  the  mortgagee,  after 
giving  all  parties  interested  notice,  and  an  opportunity  of  renewal, 
has  been  held  not  to  be  in  trust  for  the  mortgagor:  see  Nesbitt  v. 
Tredennick,  1  Ball'&  B.  29.  There  it  appeared  that  the  lessee 
against  whom  the  landlord  had  recovered  in  ejectment,  had  allowed 
the  time  for  redemption  to  pass  by  without  tendering  rent,  tines,  and 
cost,  that  the  mortgagee  who  had  three  months  further  to  redeem 
sent  notice  to  the  lessee  that  he  would  not  himself  redeem,  but 
should  make  the  best  bargain  he  could  with  the  landlord.  After- 
wards he  agreed  to  take  a  new  lease,  to  commence  from  the  expira- 
tion of  three  months,  with  a  proviso  that  if  any  of  the  other  parties 
interested  should  make  a  lodgment,  the  agreement  should  be  void. 
Lord  Manners  under  these  circumstances  held  that  the  lease  granted 
to  the  mortgagee  was  not  bound  by  any  trust  for  the  mortgagor. 
His  lordship  said  that  in  all  previous  cases  the  party  had  obtained 
renewal  by  being  in  possession,  or  it  was  done  behind  the  back  or 
by  some  contrivance  in  fraud  of  those  who   were  interested  in  the 

9   WHITE    ox    EQUITY.  129 


*  61  KEECH  V.  SANDFORD. 

old  lease,  and  there  was  either  a  remnant  of  the  old  lease,  or  a  ten- 
ant-right of  renewal,  on  which  the  new  lease  could  be  ingrafted,  but 
that  here  no  part  of  the  mortgagee's  conduct  showed  a  contrivance, 
nor  was  he  in  possession,  and  all  that  the  mortgagee  treated  for  was 
a  new  lease,  giving  full  opportunity  to  the  lessee  to  dispose  of  his 
interest,  or  to  renew  if  he  was  enabled  to  do  so. 

On  the  other  hand,  if  a  lessee  mortgage  leaseholds,  and  after- 
wards obtain  a  new  lease,  the  new  lease  will  be  held  a  graft  on  the 
old  one  for  the  benefit  of  the  mortgagee:  Smith  v.  Chichester,  1  C. 

&  L.  486. 
[  *  61  ]  Upon  the  same  principle  if  a  *  person  entitled  to  a  lease, 
subject  to  debts,  legacies,  or  annuities,  renews,  either  in  his 
own  name  or  in  the  name  of  a  trustee,  the  incumbrances  will  remain 
a  charge  upon  the  renewed  lease:  Seabourne  v.  Powel,  2  Vern.  11; 
Jackson  v.  Welsh,  L.  &  G.  t.  Plunk.  346;  Winsloiv  v.  Tighe,  2  Ball 
&  B.  195;  Stubbs  v.  Roth,  2  Ball  &  B.  548;  Webb  v.  Lugar,  2  You. 
&  Coll.  Exch.  Ca.  247;  Jones  v.  Kearney,  1  C.  &  L.  34;  Otter  v. 
Vaiix,  6  De  G.  Mae.  &  G.  638. 

And  a  lessee  will  not  be  allowed  to  evade  the  operation  of  the 
rule  laid  down  in  the  principal  case  by  fraudulently  incurring  a  for- 
feiture of  the  lease  which  he  induces  the  landlord  to  take  advantage 
of,  and  afterwards  obtains  from  him  a  new  lease:  Hughes  v.  Hoiv- 
ard,  25  Beav.  575;  Stratton  v.  Murphij,  1  I.  E.  Eq.  345. 

[Whether  a  person  who  renews  is  bound  to  renew  for  the  benefit 
of  another,  can  purchase  the  reversion  for  themselves  seems  to  be  a 
doubtful  question.  Eldredge  v.  Smith,  34  Vt.  484;  Britton  v. 
Lewis,  8  Rich.  Eq.  271,  and  see,  Randall  v.  Russell,  Meriv.  190.] 

If  a  person,  having  the  right  of  renewal,  sells  such  right,  the 
money  produced  by  the  sale  will  be  afPected  by  the  same  trusts  as 
the  leaseholds,  if  renewed,  would  have  been.  Thus,  in  Owen  v. 
Williams,  Amb.  734,  where  a  tenant  for  life  of  a  Crown  lease  ap- 
plied for  a  further  term,  but  a  powerful  opponent  having  appHed 
for  a  grant,  the  tenant  for  life  gave  up  her  pretensions  for  a  sum  of 
money,  Lord  Apsley,  upon  the  authority  of  the  principal  case,  held 
that  the  money  ought  to  be  settled  upon  the  same  trusts  as  the  lease. 
And  in  Lombards.  Hickson,  13  Ir.  Ch.  Rep.  98,  an  execution  cred- 
itor of  the  lessee  of  a  share,  of  renewable  leaseholds,  of  which  he 
had  obtained  possession  by  ejectment,  and  who  bought  the  superior 
lease,  was  held  bound  by  a  jointure  rent  created  by  the  lessee,  and 
of  which  he  had  notice. 

A  person  acting  as  agent,  or  in  any  similar  capacity,  for  a  person 
having  an  interest  in  a  lease,  cannot  renew  /or  his  own  benefit.  See 
Edwards  V.  Leivis,  3  Atk.  538;  ChHffin  v.  Griffin,!  S.  &  L.  352; 
Mulvany  v.  Dillon,  1  Ball  &  B.  417;  and  Mulhallen  v.  Marum,  3 
D.  &  W.  317,  in  which  case  a  lease  was  obtained  by  a  person  stand- 
ing, by  delegation,  in  the  place  of  guardians,  and  who  at  the  same 
time,  filled  the  characters  of  agent,  receive!',  and  tenant.  It  was 
130 


KEECII  V.  SANDFORD.  *  62 

Ret  aside  by  Sir  Edirard  Sudcjen,  L.C.,  upon  the  equity  arising  out 
of  those  relations  and  upon  public  policy. 

The  rule  laid  down  in  the  principal  case  has  been  very  strictly 
followed.  Thus,  as  was  then  decided,  the  refusal  of  the  lessor  to 
renew  to  the  cestui  que  trust  [ante,  p.  53,  Griffin  v.  Griffin,  1  S.  & 
L.  353);  the  refusal  of  co-trustees  to  concur  in  a  renewal  for  the 
benefit  of  the  cestui  que  trust  [Bleicett  v.  Millett,  7  Bro.  P.  C. 
367;  the  fact  that  the  old  lease  had  expired  (Edwards  v.  Leicis,  3 
Atk.  538);  that  the  lease  had  not  customarily  been  renewed 
{Killick  V.  Flexney,  4  Bro.  C.  C.  161;  Featherstonhcmgh 
*v.  Femvick,  17  Ves.  298;  Mulvany  Dillon,  1  Ball  &  B.  [  *  62  ] 
409;  Eijre  v.  Dolphin,  2  Ball  &  B.  290);  the  fact  that  the 
new  lease  differed  from  the  old  one  either  as  being  for  lives  instead 
of  for  a  term  {Eyre  v.  Dolphin,  2  Ball  k  B.  298);  or  was  for  a  dif- 
ferent term,  or  at  a  different  rent  {Mulvany  v.  Dillon,  1  Ball  &  B. 
409;  James  v.  Deaii,  11  Ves.  383;  S.  C.,15  Ves.  236);  or  comprised 
lands  not  in  the  old  lease  ( Giddings  v.  Giddings,  3  Buss.  241 ) ; 
has  been  held  not  to  prevent  the  application  of  the  rule. 

It  may,  however,  be  here  mentioned  that  where  a  trustee,  or  ten- 
ant for  life,  obtains  a  new  lease,  which  comprises  not  only  the  prem- 
ises in  the  original  lease,  but  also  additional  lands,  the  trusts  will 
not  attach  upon  the  additional  lands:  Acheson  v.  Fair,  3  D.  &  AV. 
512;  2  C.  &  L.  208;  O'Brien  v.  Egan,  5  L.  R.  I.  633. 

A  trustee  who  has  renewed  will  be  directed  to  assign  the  lease,free 
from  incumbrances,  except,  it  seems,  any  lease  made  by  him  bona  fide 
at  the  best  rent  {Boicles  v.  Steicart,  1  S.  &L.  230);  and  he  must  ac- 
count also  for  the  mesne  rents  and  profits  and  fines  which  he  may 
have  received  {Mulvany  \.  Dillon,  1  Ball  &  B.  409;  Walley  v.  Walley, 

I  Vern,  484;  Luckin  v.  Rushworth,  Finch,  392;  Bleicitt  v.  Millett, 
7  Bro.  P.  C.  367,  Toml.  ed.;  Eawe  v.  Chichester,  Amb.  715);  even 
although  the  lease  had  expired  before  the  bill  was  filed;  Eyrey.  Dol- 
phin, 2  Ball  &  B.  290.  But  where  a  tenant  for  life  has  renewed, 
the  account  will  commence  only  from  his  decease;  Giddings  v.  Gid- 
dings, 3  Buss.  241. 

On  the  other  hand,  the  person  who  has  renewed  the  lease  will  be 
entitled,  as  in  the  principal  case,  to  be  indemnified  against  the  cove- 
nants he  may  have  entered  into  with  the  lessor  {Giddings  v.  Gid- 
dings, 3  Russ.  241);  and  he  will  also  have  a  lien  upon  the  estate 
for  the  costs  and  expenses  of  renewing  the  lease,  with  interest 
Raice  V.  Chichester,  Arab.  715,  720;  Coppin  v.  Fernyhough,  2  Bro. 
C.  C.  291 ;  Latcrence  v.  Maggs,  1  Eden,  453,  and  note;  James  v.  Dean, 

II  Ves.  383;  Kempton  v.  Packman,  cited  7  Ves.  176;  Isaac  y.  Wall, 
6  Ch.  D.  706);  and  for  the  expenses  of  lasting  improvements  {Holt 
V.  Holt,  1  Ch.  Ca.  190;  and  see  Laicrence  v.  Maggs,  1  Eden,  453, 
Endnote;  Mill  v.  Hill,  3  H.  L.  Cas.  828,  869);  even  though  in- 
curred after  the  institution  of  the  suit  {Walley  v.  Walley,  1  Vern. 
487);  but  not  for  any  improvements  adopted  as  a  mere  matter  of 
taste,  or  as  a  matter  of  personal  convenience  {Mill  v.  Hill,  3  H.  L. 

131 


*  64  KEECH  V.  SANDFORD. 

Cas.  869.     At  the  same  time  there  may  be  many  charges   in  the 
nature  of  waste,  and  as  to  deterioiation,  which  must  be  set  off  against 

anything  found  due  in  respect  of  improvements. 
[  *  63  ]        *And  where  new  lands  not  in  the  old  are  comprised  in  the 
renewed  lease,  the  expenses  will  be  apportioned  according 
to  the  value  of  the  respective  lands:   Giddings  \.  Giddmgs,  3  Russ. 
241,  251. 

Where  a  tenant  for  life  renews  a  lease  by  putting  in  his  own  life, 
he  cannot  claim  to  be  repaid  any  part  of  the  expense,  because  by  put- 
ting in  his  own  life,  he  obviously  conferred  no  benefit  upon  those  in 
remainder,  who  were  to  take  after  his  death  (Laurence  v.  Maggs,  1 
Eden,  453,  455);  where,  however,  the  tenant  for  life,  without  any 
obligation  to  do  so,  renews  a  lease  by  putting  in  the  life  of  a  stranger, 
the  expenses  thereof  will,  on  the  death  of  the  tenant  for  life,  be  ap- 
portioned by  the  remaindei'man  paying  his  proportion  of  the  benefit 
he  derived  from  the  renewal:  White  v.  White,  9  Ves.  554;  Allan y. 
Backhouse,  2  V.  &  B,  65;  and  such  apportioned  expenses  will  be  a 
charge  on  the  premises  (Adderley  v.  Clavering,  2  Bro.  C.  C.  659,  2 
Cox,  192);  even  although  the  remaindermen  are  the  children  of  the 
tenant  for  life,  and  claim  as  an  advancement  the  sum  paid  for  re- 
newal by  their  father:  Lawrence  v.  Maggs,  1  Eden,  453,  456. 

As  to  contribution  towards  payment  of  fines  upon  renewals,  see 
White  V.  White,  9  Ves.  554;  Playters  v.  Abbott,  2  My.  &  K.  97;  Earl 
of  Shaftesbury  v.  I^ike  of  Marlborough,  2  My.  &  K.  Ill;  Reeves  v. 
Cresicick,  3  You.  &  Coll.  Exch.  Ca.  715;  Jonesy.  Jones,  5  Hare,  440; 
Giddings  v.  Giddings,  3  Buss.  241,  259;  Tudor's  Lead.  Cas.  Eeal 
Prop.  90,  97,  3rd  ed. 

Where  a  testator  has  devised  his  interest  in  a  leaseholds  subject 
to  an  annuity,  it  has  been  held  by  some  judges  that  the  annuitant 
is  not  bound  to  contribute  towards  a  renewal ;  Maxicell  v.  Ashe,  7 
Ves.  184,  cited;  Moody  v.  Mattheivs,  7  Ves.  174;  and  see  Thomas  \. 
Burne,  1  Dru.  &  Walsh.  657;  Jones  v.  Kearney,  1  C.  &  L.  47). 
Lord  Manners,  however,  held  that  an  annuitant  ought  to  contribute 
according  to  his  interest  in  the  property:  Winsloiv  v.  Tighe,  2  Ball. 
&  B.  195;  Stubbs  v.  Roth,  2  Ball  &  B.  548. 

The  same  remedies  which,  as  we  have  before   seen,  may  be  had 
against  trustees,  executors,  and  persons  with  limited  interests,  renew- 
ing leases  in  their  own  names,  may  also  be  had  against  volunteers 
claiming  through  them  {Boules  v.  Stewart,  1  S.  &  L.  209;  Eyre  v. 
Dolphin,  2  Ball  &  B.  290;  Bleu^ett  v.  Millett,  7  Bro.  P.  C.  Toml.  ed. 
367 ) ;  and  against  purchasers  from  them,  with  notice  expressed  or 
implied:   Walley  v.  W alley,  1  Vern.  484;  Eyre  v.  DoZp/itw,  2  Ball.  & 
B.  290;  Parker  v.  Brooke,  9  Ves.  583;  Stratton  v.  Murphy,  1  I.  R. 
Eq.  345;  Coppin  v.  Fernyhough,  2  Bro.  C.  C.  291.     See  also  Hodg- 
kinson  v.  Cooper,  9  Beav.  304;  In  re  Morgan,  18  Ch.  D.  93; 
[  *  64  ]  Le  Neve  v.  Le  Neve,  vol.  2,  L.  C.  Eq.  *  and  note,  6th  ed. ) ; 
even  although  such  volunteers  and  purchasers  with   notice 
may  have  levied  a  fine  (Bowles  v.  Stewart,  I  S.  &  L.  209,  225);  or 
132 


KEECII  V.  SANDFOR-D.  *  04 

even  have  obtained  a  release  from  the  cestui  que  tniRts,  provided  that 
when  the  fine  was  levied  and  the  release  executed  the  trustees  were 
guilty  of  the  concealment  of  material  facts  from  the  cestui  que  trust, 
by  suppression  of  deeds  and  otherwise.     lb.  226,  227. 

And  where  a  deed  by  which  the  lease  was  settled  was  registered 
under  the  Irish  Registry  Act  (6  Ann.  c.  2),  a  purchaser,  although 
without  notice  from  a  person  having  a  limited  interest,  who  had  re- 
newed the  lease  in  his  own  name,  was  hold  to  be  a  trustee  for  the 
parties  interested  under  the  settlement:  Hill  v.  Mill,  12  Ir.  Eq.  Eep. 
107;  S.  a,  nom.  Mill  v.  Hill,  3  H.  L.  Cas.  828. 

But  the  cestui  que  trust  may  be  bound  by  acquiescence  and  lapse 
of  time.  See  Isald  v.  Fitzgerald,  cited  in  Owen  v.  Williams,  Amb. 
735,  737;  Norris  v.  LeNeve,  3  Atk.  38,  39;  Jackson  v.  Welsh,  L.  & 
G.,  Ca.  t.  Plunk.  346),  especially  where  the  property  sought  to  be 
affected  with  a  trust  is,  as  in  the  case  of  mines,  subject  to  extraor- 
dinary contingencies,  and  is  capable  of  being  rendered  productive 
only  by  a  large  and  uncertain  outlay  (Clegg  v.  Edmondson,  8  De  G. 
Mac.  &  G.  787). 

[A  constructive  trust  will  be  barred  by  long  acquiescence,  but  it  is 
difficult  to  say  as  to  the  length  of  time:  Sherwood  v.  Sutton,  5 
Mason,  143;  Kaae  v.  Bloodgood,  7  John,  93;  Pascball  r.  Hinderer, 
28  Ohio,  568;  Elmendorf  v.  Taylor,  10  Wheaton,  168.  Twenty 
years  has  been  held  sufficient  to  bar  any  relief  in  such  cases:  Morris's 
Appeals,  71  Past.  124;  Field  v.  Wilson,  6  B.  Mon.  479;  Perry  v. 
Craig,  3  Mo.  360.  So  has  thirty  years:  Harrod  v.  Fountleroy,  3  J. 
J.  Marsh,  548.  In  other  case  relief  was  not  barred  by  a  delay  of 
twelve  years:  Newman  v.  Early,  3  Tenn.  Ch.  714;  Butler  v.  Has- 
kell, 4  Des.  651.] 

And  it  is  immaterial  that  the  cestui  que  trust  made  a  continual 
claim,  if  during  the  time  he  made  it  he  took  no  effectual  steps  to 
enforce  his  alleged  rights,     lb. 

A  tenant  for  life,  under  a  settlement  of  leaseholds,  procuring  a 
renewal  to  himself,  was  held  not  to  take  the  renewal  as  an  express 
trustee  upon  the  trusts  of  the  settlement;  the  Statute  of  Limitations 
(3  &  4  Will.  4,  c.  27)  therefore  was  held  to  run  as  against  other 
persons  claiming  under  the  settlement:  In  re  Dane' s  Estate,  5  I.  R. 
Eq.  498. 

When  it  is  impossible  to  obtain  the  renewal  of  a  lease,  if  there  be 
no  predominant  ti;ust  for  renewal,  ovemding  the  disposition  in 
favour  of  the  subsequent  tenant  for  life,  the  latter,  it  seems,  will  be 
entitled  to  the  sum  accumulated  by  the  direction  of  the  settlor  for 
that  purpose.  See  Morres  v.  Hodges,  27  Beav.  625.  There,  by  a 
settlement,  the  trustees  were  to  use  their  utmost  endeavours  to  re- 
new an  ecclesiastical  lease  upon  reasonable  terms,  and  to  raise  the 
fines  out  of  the  rents  or  by  mortgage.  A  renewal  became  impracti- 
cable. It  was  held  by  Sir  John  Romilhj,  with  evident  reluctance, 
upon  the  authority  of  Tardijf  v.  Robinson,  27  Beav.  629  n.— a  deci- 
sion of  Lord  Eldon's —  that  the*f  und  reserved  by  the  trustees  out  of  the 

133 


*  60  KEECH  V.  SANDFORD. 

rents  for  the  purpose  of  renewal  belonged  absolutely  to  the  tenant  for 
life;  and  see  2  Seton  on  Decrees,  1275,  4th  ed. ;  Richardson 
[  *65  ]  V.  ilioo?T.,  6  *Madd.  83  n.  cited;  In  re  Money's  Trusts,  2  D. 
&  Sm.  94. 

Nor  would  the  Court  in  such  a  case,  where  the  trustees  have  a 
mere  power  to  renew,  allow  them  to  purchase  the  reversion  in  lease  - 
holds  under  the  Episcopal  and  Capitular  Estates  Act  (23  &  24  Vict. 
c.  124)  to  the  prejudice  of  the  tenant  for  life.  See  Hayuard  v. 
Pile,  5  L.  R.  Ch.  App.  214.  There  a  testatrix  bequeathed  lease- 
holds under  a  Dean  and  Chapter  to  trustees  on  trust  for  a  tenant 
for  life,  with  remainders  over,  and  with  power  to  raise  money  for 
renewing  the  leases.  The  property  became  vested  in  the  Ecclesi- 
astical Commissioners,  with  whom  the  trustees  under  23  &  24  Yict. 
c.  124,  agreed  for  the  purchase  of  the  reversion  in  part  of  the 
leaseholds,  in  consideration  of  the  surrender  of  the  other  part,  and 
the  payment  of  a  sum  of  money.  The  estate  of  the  testatrix  was 
administered  by  the  Court,  and  the  agreement  was  made  subject  to 
the  approval  of  the  Court.  If  was  held  by  Lord  Hatherley,  L.  C, 
affirming  the  decision  of  Lord  Romilly,  M.  II.,  that  the  Court  would 
not  approve  of  the  agreement  against  the  wish  of  the  tenant  for 
life,  if  his  income  would  be  considerably  reduced  by  the  purchase. 
See  Jones  v.  Jones,  5  Hare,  440,  460,  462. 

Where,  however,  it  appears  to  have  been  the  pa7'a7nount  intention 
of  the  testator,  as  indicated  by  the  disposition  made  by  his  will,  that 
those  entitled  in  reversion  expectant  upon  the  decease  of  a  tenant 
for  life  should  succeed  to  the  enjoyment  of  substantially  the  same 
estate,  the  tenant  for  life,  upon  the  renewal  becomiug  impracticable, 
will  only  be  entitled  to  the  income  arising  from  the  sum  set  apart 
for  renewal,  and  of  the  sum  produced  by  the  sale  of  the  leaseholds. 
See  Maddy  v.  Hale,  3  Ch.  D.  327.  There  a  testator  gave  to  trus- 
tees a  tithe  rent-charge  held  under  an  ecclesiastical  lease  for  twenty- 
one  years,  which  was  ia  practice  renewed  every  seven  years  on  pay- 
ment of  a  fine,  upon  trust  to  renew  out  of  the  proceeds,  and  to  ap- 
ply the  surplus  in  a  certain  way  during  the  life  of  his  wife,  and 
directed  that  after  her  death  it  should  form  part  of  his  residuary 
estate.  He  gave  his  trustees  power  at  any  time  to  sell  the  lease- 
hold interest.  The  lease  having  ceased  to  be  renewable,  it  was  held 
by  the  Court  of  Appeal,  reversing  the  decision  of  Malins,  V.  C, 
that  the  leasehold  interest  ought  to  be  sold,  and  the  proceeds  in- 
vested, and  only  the  income  of  this  fund  and  the  renewal  fund  ap- 
plied as  income.     See  2  Seton  on  Decrees,  1273,  4th  ed. 

And  where  a  similar  intention  is  shown  with  regard  to  renewable 

leaseholds  which  are  afterwards  taken  by  a  railway  company  under 

its  compulsory  powers,  a  tenant  for  life  will  only  be  en- 

[  *  66  ]  titled  to  the  interest  arising  *  from  the   purchase-money, 

although  the  custom  to  renew  may  not  have  ceased  until 

after  the  premises  were  taken  by  the  railway  company.     Thus,  in 

Re  Wood's  Estate,  10  L.  R.  Eq.  572,. leaseholds  under  a  Dean  and 

134 


KEECir  V    SANDFORD.  *  67 

Chapter,  renewable  by  custom,  were  held  by  trustees  upon  trust  for 
a  tenant  for  life,  with  remainder  over;  and  the  trustees  were  di- 
rected, "  two  years,  or  sooner,  before  the  time  for  renewal,"  to  bring 
a  part  of  the  rental  into  a  fund  until  a  sufficient  sum  was  raised  for 
the  renewal,  "  so  that  the  estates  may  bo  always  kept  renewed  .  . 
for  ever."  In  June,  1805,  and  February,  1806,  notices  to  treat  for 
parts  of  the  leaseholds,  then  having  about  thirteen,  and  five,  years 
respectively  to  run  were  given  by  a  Kail  way  Company.  At  Lady- 
day,  1860,  the  Dean  and  Chapter  ceased  to  renew  leases;  and  about 
the  same  date  their  pi'operty  was  taken  over  by  the  Ecclesiastical 
Commissioners.  The  values  of  the  two  properties  having  been  as- 
sessed at  amounts  which,  when  paid,  and  invested  in  £3  per  cent, 
stock,  gave  a  diminished  income,  it  was  argued  that  as  the  renewal 
had  become  impossible,  all  trust  for  renewal  had  ceased,  and  that 
the  property  ought  to  be  dealt  with  as  if  it  were  a  mere  leasehold 
for  a  term  of  years,  to  which  the  tenant  for  life  was  entitled  in  sj^ecie; 
and  that,  therefore,  the  tenant  for  life  was  entitled  to  have  the 
whole  fund  treated  as  converted  into  an  annuity  of  duration  equiva- 
lent to  the  term,  and  to  have  each  year  one  year's  payment  of  the 
annuity.  It  was,  however,  held  by  Sir  W.  M.  James,  L.  J.,  that 
the  tenant  for  life  was  only  entitled  to  the  dividends  of  the  fund 
arising  from  the  sale  of  the  leaseholds  to  the  Railway  Company. 
"I  am  of  opinion,"  said  his  Lordship,  "  that  I  am  not  in  the  present 
case  bound  by  those  cases  of  Morres  v.  Hodges  (27  Beav.  625)  and 
Tardiff  v.  Robinson  (27  Beav.  029,  n.).  In  those  cases  the  conclu- 
sion arrived  at  by  the  Court  was,  that  the  tenant  for  life  was  en- 
titled in  specie  to  the  whole  rents  and  profits,  charged  only  with  the 
payment  of  such  a  sum  as  might  be  required  for  the  renewal,  and  as 
no  renewal  was  practicable,  there  was  nothing  by  which  the  charge 
could  be  maintained,  and  no  means  by  which  any  substituted  benefit 
could  be  ascertained  by  the  Court  to  be  given  to  the  remainderman. 
In  this  case,  however,  the  primary  and  paramount  intention  was 
'  that  the  estates  may  be  always  kept  renewed,  and  that  the  younger 
children  may  have  an  equal  benefit  of  time,  and  so  continue  to  be 
provided  for,  for  ever.'  .  .  .  The  testator  intended  to  create,  and 
was  creating  as  he  thought,  a  perpetual  estate,  out  of  which  he  was 
carving  successive  interests.  .  .  .  The  result,  in  my  opinion, 
of  the  purchase  by  the  *  Railway  Company  is,  that  one  [  *  67  ] 
property  in  perpetuity  is  substituted  for  another  property  in 
perpetuity;  and  that  as  between  the  tenant  for  life  and  the  remain- 
derman, I  cannot  take  away  any  part  of  the  corpus  belonging  to  the 
latter,  in  order  to  make  good  the  diminished  income  of  the  former." 
Where  a  trust  for  renewal  of  leaseholds  is  absolute  and  overrides 
the  interest  of  the  tenant  for  life,  he  is  not  entitled  to  object,  on  the 
ground  of  the  reduction  of  his  interest,  to  any  arrangement  in  lieu 
of  renewal,  which  may  Iw  made  under  the  provisions  of  the  Epis- 
copal and  Capitular  Estates  Act  (23  &  24  Vict.  c.  124),  where  re- 
newal ceases  to   be  possible,  so  long  as  the  best  practicable  terms 

135 


*  68  KEECH  V.  SANDFORD. 

are  obtained.  See  Hollier  v.  Burne,  16  L.  E.  Eq.  163.  There  a 
testator  bequeathed  specifically  leaseholds  held  under  a  Dean  and 
Chapter  to  trustees  upon  trust  for  a  tenant  for  life,  with  remainders 
over.  The  will  contained  directions  amounting  to  a  trast  for  re- 
newal overriding  the  interest  of  the  tenant  for  life,  and  also  an  ab- 
solute power  of  sale  in  the  trustees.  The  reversion  became  vested 
in  the  Ecclesiastical  Commissioners,  who  refused  to  renew,  but  were 
willing  to  sell  the  reversion  in  part  of  the  property  in  consideration 
of  the  surrender  of  the  lease  of  the  rest  and  payment  of  a  sum  of 
money.  The  tenant  for  life  opposed  the  acceptance  of  such  pro- 
posal, on  the  gi'ound  that  her  income  would  be  greatly  diminished. 
It  was  held  by  Lord  Selborne,  C,  sitting  for  the  Master  of  the  Rolls, 
that  the  proposed  arrangement  was  within  the  powers  conferred  by 
the  will  and  the  statute  23  &  24  Vict.  c.  124,  and  that  the  Court 
had  power  to  direct  it  to  be  carried  into  effect;  and  an  inquiry  was 
directed  whether  the  proposed  arrangement  was  proper  and  bene- 
ficial, having  regard  to  the  value  of  the  leasehold  property  and  the 
rio-ht  of  the  remainderman  under  the  will  to  succeed,  upon  the  death 
of  the  tenant  for  life,  to  the  enjoyment  as  nearly  as  might  be  of  the 
corpus  of  the  same  property  to  the  income  of  which  the  tenant  for 
life  was  entitled  during  his  life. 

And  where  there  is  a  paramount  trust  for  the  renewal  of  such 
leases,  overriding  the  interest  of  the  tenant  for  life,  when  the  re- 
newal afterwards  becomes  impossible,  it  is  the  duty  of  trustees  (un- 
less it  is  impossible  so  to  do)  to  purchase  the  reversion  from  the 
Ecclesiastical  Commissioners:  In  re  Lord  Ranelagli' s  Will,  2C)  Ch. 
D.  596,  598;  citing  In  re  Wood's  Estate,  10  L.  R.  Eq.  572;  Hollier 
V.  Bunie,  16  L.  R.  Eq.  103;  Maddy  v.  Hale,  3  Ch.  D.  327.  So  in 
Gabbettv.  Laivder,  11  L.  R.  I.  295,  A.  became  entitled,  as  adminis- 
trator of  an  intestate,  to  certain  lands  held  under  a  lease  from  the 

Commissioners  of  Church  Temporalities  in  Ireland  for  twen- 
[  *68]  ty-one  years,  customarily  *  renewable;  and  being  so  entitled 

he,  as  such  administrator,  obtained  fi*om  the  Commissioners 
a  renewal  of  the  lease  for  twenty -one  years.  The  Commissioners 
subsequently,  under  section  34  of  the  Irish  Church  Act,  1869  (32  & 
33  Vict,  c,  42),  offered  to  sell  the  reversion  in  fee  in  the  lands  in 
question  to  A.  as  their  immediate  tenant,  at  a  certain  price.  A. 
declined  to  buy  at  the  price  named,  and  the  Commissioners  there- 
upon set  up  the  reversion  in  fee  for  sale  by  auction,  and  A.  pur- 
chased it  at  the  auction,  and  obtained  a  conveyance  from  the  Com- 
missioners,  which  was  made  expressly  subject  to  the  lease  and  to 
the  right  of  renewal  thereunder.  It  was  held  by  Chatterton,  V.  C, 
that  A.  became  a  constructive  trustee  of  the  reversion  so  purchased 
for  the  persons  beneficially  entitled  to  the  personal  estate  of  the  in- 
testate, and  that  it  formed  a  portion  of  such  personal  estate,  the 
persons  claiming  it  to  pay  the  purchase-money  and  all  the  expenses 
incurred  by  A.  in  the  purchase. 

And  where  a  purchaser  of  the  equitable  interest  of  the  tenant 

136 


KEECII  V.  SANDFORD.  *  69 

for  life  in  such  reaewablo  loaso,  nob  having  tho  legal  estate  in  the 
lease  in  him,  but  assuming  to  act  with  reference  to  that  j)roperty  as 
if  he  had  the  legal  estate,  purchases  tho  reversion  from  theEcch'si- 
astical  Commissioners,  he  will  be  considered  to  have  acted  in  the 
place  of  the  real  trustees  of  the  lease,  and  to  have  acquired  the  prop- 
erty for  the  benefit  of  all  the  persons  entitled  under  the  will  (In 
re  Lord  lianeluglis  Will,  20  Ch.  D.  590,  590,  599) ;  and  if  the  prop- 
erty be  taken  under  compulsory  powers  and  the  money  paid  into 
Court,  subject  to  his  right  to  bo  recouped  the  expense  of  his  pur- 
chase, he  will  only  be  entitled  to  an  order  for  payment  on  the  in- 
terest on  tho  fund  in  Court  during  the  life  of  the  tenant  for  life  un- 
der the  will,  ib. 

The  next  case  to  be  noticed,  though  distinguishable  from,  is 
scarcely  consistent  with  the  last.  The  case  alluded  to  is  Hardman 
V.  Johnson,  3  Mer.  347.  There  the  testator  by  his  will  gave  his  in- 
terest in  a  corporation  lease — viz.  a  lease  for  three  lives  and  twenty- 
one  years  beyond  to  his  daughter,  and  in  case  she  should  die  with- 
out issue  living  at  her  death,  then  it  was  to  go  over  to  her  sister. 
The  daughter  lived  till  after  the  expiration  of  the  three  lives,  and 
during  the  period  of  twenty-one  years  which  commenced  upon  the 
expiration  of  the  last  life,  she  obtained  a  renewal  of  the  lease,  for 
the  lives  of  herself  and  two  other  persons  and  twenty-one  years  ex- 
pectant on  the  death  of  the  survivor.  She  then  died  after  the  expi- 
ration of  the  first  twenty-one  years,  without  issue,  having  by  her  will 
given  all  her  property  to  the  defendant  Johnson,  on  the  supposition 
that  she  was  entitled  to  dispose  of  the  I'enewed  lease.  Upon 
herdeath  her  sister  entered  *upon  the  property,  claiming  to  [*G9  ] 
do  so  under  the  will  of  the  testator,and  the  defendant  Johnson 
brought  ejectment  against  the  sister,  and  succeeded  at  law  and  en- 
tered into  possession  under  the  judgment  at  law,  and  whilst  he  teas 
in  possession  under  that  judgment  he  bought  the  reversion.  Then  a 
bill  was  filed  against  him  by  the  sister,  claiming  that  the  renewed 
lease  had  been  taken  by  the  deceased  daughter  of  the  testator,  and 
that  the  reversion  had  been  bought  by  Johnson,  upon  the  trusts  of 
the  will,  and  they  both  belonged  to  the  plaintifl.  Sir  W.  Grant,  M. 
R.,  first  doubted  whether  she  was  not  entitled  to  the  whole  relief 
which  she  asked;  but  upon  further  consideration  he  gave  her  the 
renewed  lease  which  her  sister  had  obtained,  but  he  decided  that 
Johnson  was  e)ititled  to  keep  the  reversion  which  be  had  purchased. 

Pearson,  J.,  in  commenting  in  In  re  Lord  Ranelaglis  Will  (26 
Ch.  D.  599)  on  the  case  of  Hardman  v.  Johnson,  observes  that  there 
are  two  essential  differences  between  the  cases.  Fix'st,  that  in  the 
latter  there  was  no  trust  for  renewal  in  the  will;  in  the  second  place, 
it  appeared  that  Johnson  bought  the  reversion  whilst  he  was  in 
possession  under  the  judgment  of  a  Court  of  law  that  he  was  en- 
titled to  the  property;  that  his  Lordship  suspected  (because  no 
reasons  were  given  in  the  judgment)  that  Sir  W.  Grant  came  to  the 
tonclusion   that  Johnson    had  bought   the  reversion    under  those 

137 


*  70  KEECH  V.  SANDFORD. 

peculiar  circumstaaces,  that  it  was  impossible  to  suppose  that  he  had 
bought  it  as  a  trustee  for  the  persons  entitled  to  the  lease  under  the 
will. 

However,  according  to  Sir  W.  GranVs  decision,  Johnson  was 
trustee  of  the  renewed  lease  devised  to  him  by  the  testatrix,  for  the 
testatrix's  sister,  and  it  would  seem  to  follow  that  he  ought  not  to 
have  been  allowed,  while  occupying  that  position,  to  purchase  the 
reversion  for  his  own  benefit. 

With  respect  to  the  question,  in  Hardman  v.  Johnson,  whether  a 
tenant  for  life  could  become  a  purchaser  of  the  reversion-,  not  from 
a  mere  stranger  but  from  the  lessor.  Sir  W.  Grant,  M.  R.,  observed, 
that  it  might  be  said  that  she  thereby  intercepted  and  cut  off  the 
chance  of  future  renewals,  and  consequently  made  use  of  her  situa- 
tion to  prejudice  the  interests  of  those  who  stood  behind  her;  and 
that  there  might  be  some  sort  of  equity  in  their  claim  to  have  the 
reversion  considered  as  a  substitution  for  those  interests,  although 
he  was  not  aware  of  any  decision  to  that  effect.  See  Randall  v. 
Russell,  3  Mer.  190,  197;  and  this  view  appears  to  have  been  taken 
by  Hall,  V.-C,  in  Isaac  v.  Wall,  6  Ch.  D.  706;  Norris  v.  Le  Neve, 
3  Atk.  37 ;  Leslei/s  Case,  Freem.  52.  And  in  a  recent  case  a  testa- 
trix having  devised  leaseholds,  renewable  by  custom,  to  J.  P.  for  the 
residue  of  the  term,  and  after  the  death  of  J.  P.  during  the  residue 
of  the  term,  to  the  children  of  J.  P.,  in  equal  shares,  and  J.  P. 
having  renewed  the  leaseholds  and  pui'chased  the  reversion,  it  was 
held  by  the  Court  of  Appeal,  reversing  the  decision  of  Bacon,  V.- 
C,  that  the  fee  simple  property  passed  by  the  devise  in  the  will  to 
the  children  of  J.  P.,  and  became  subject  to  the  trusts  of  the  will  : 

Phillljjs  V.  Phillips,  29  Ch.  D.  673. 
[  *  70  ]  Where,  however,  the  executor  *  of  a  mortgagee  purchased 
the  equity  of  redemption  of  the  mortgaged  estate  in  his  own 
name,  with  the  money  due  on  the  mortgage  and  a  small  advance 
beyond  it,  he  was  hold  to  be  a  trustee  of  the  purchased  property  for 
the  benefit  of  the  testator's  estate:  Fosbrooke  v.  Balgay,  1  My.  & 
K.  226. 

A  quasi  tenant  in  tail  of  leasehold  being  the  absolute  owner  of 
them,  is  not  bound  by  the  same  equities  as  persons  having  merely 
limited  interests;  thus,  where  a  testator  devised  leaseholds  for  lives 
to  trustees  for  A.,  and  the  heirs  of  his  body,  and  if  he  should  die 
without  issue,  remainder  to  B.,  A.  surrendered  the  old  lease,  and  took 
a  new  one  to  himself  and  his  heirs  for  three  new  lives,  and  died 
without  issue,  having  devised  the  leaseholds  to  his  widow  for  life, 
remainders  over.  A  bill  filed  by  B.,  to  have  the  benefit  of  the  new 
lease,  insisting  that  the  surrender  of  the  old  lease  and  taking  the 
new  one  was  not  sufficient  to  bar  the  limitation  to  him,  and  that 
those  claiming  under  A.  ought  to  be  held  trustees  of  the  new  lease, 
was  dismissed:  Blake  v.  Blake,  1  Cox,  266. 

Where  a  stranger  obtains  a  renewal  of  a  lease,  or  a  reversionary 
lease,  the  old  tenant  has  no  equity  against  him:  Lee  v.  Lord  Vernon, 

138 


KEEGU  V.  SANDFORD.  *  71 

5  Bro.  P.  C.  10,  Toml.  ed. ;  Earl  of  Sandwich  v.  Earl  of  Lichfield, 
Colles,  P.  C.  104;  Stokes  v.  Clarke,  Colles,  P.  C.  192;  Nesbitt  v. 
Tredennick,  1  Ball  &  B.  2'J;  LenleiXs  Case,  Freem.  52;  The  Attorney - 
General  v.  Gains,  11  Beav.  08,  Nor,  it  seem<,  has  a  lessee  any 
equity  against  his  sub-lessee  who  obtains  a  renewal  from  the  head 
landlord  without  consulting  him:  Maunsell  v.  O'Brien,  1  Jones, 
170  Exch.  Rep.  (Ireland). 

A  lessee,  however,  obtaining  a  renewal  of  a  lease  at  an  increased 
rent,  or  purchasing  the  reversion,  is  somewhat  in  the  position  of  a 
partner  or  fiduciary  with  respect  to  a  sub-lossee  with  whom  he  has 
entered  into  a  toties  quofies  covenant  to  renew  at  a  fixed  rent  or 
tine,  and  is  bound  either  to  renew  upon  the  old  terms  or  to  convey 
the  property  to  the  sub-lessee  upon  proper  terms.  In  Evans  v. 
Walshe,  2  S.  &  L.  519,  A.,  the  defendant,  the  lessee  of  a  corporation, 
underlet  to  the  plaintiff  at  a  certain  rent,  with  a  covenant  to  renew 
to  him  at  the  same  rent,  as  often  as  the  corporation  should  renew  to 
him.  The  corporation  raised  the  rent  payable  by  A.  Lord  Redes- 
dale  granted  an  injunction  to  restrain  the  defendant  fi-om  proceeding 
in  ejectment,  observing,  "that  he  considered  the  defendant  as  bound 
to  renew  on  the  old  terms,  unless  he  chose  to  abandon  the  property, 
and  allow  the  plaintiff  to  stand  in  his  place  for  the  renewal  which 
he  had  obtained,  which,  as  ho  had  not  covenanted  to  renew  with 
the  corporation,  he  might  perhaps  be  at  liberty  to  do.  But 
if  he  thought  fit  to  retain  the  benefit  which  he  *  had  obtained,  [  *  71  ] 
he  was  bound  specifically  to  execute  his  covenant  for  re- 
newal," , 

The  result  is  the  same  where  a  lessee  having  granted  a  similar 
sub-lease  becomes  a  purchaser  of  the  reversion  from  the  original 
lessee.  See  Postlethwaite  v.  Leicthicaite,  2  J.  &  H.  237.  There  the 
defendants,  lessees  for  lives  from  a  Dean  and  Chapter,  without  a 
covenant  for  perpetual  renewal,  granted  an  underlease  to  the  plain- 
tiff for  the  same  lives,  of  part  of  the  premises,  and  covenanted  that 
so  often  as  they  renewed  their  lease,  they  wovild  add  the  same  life 
to  the  plaintiff's  lease,  on  the  payment  of  a  fixed  fine,  such  new  lease 
to  contain  such  or  the  like  rents,  covenants,  and  provisoes  as  the 
former  lease.  The  reversion  having  become  vested  in  the  Ecclesiasti- 
cal Commissioners,  they  refused  to  renew,  but  offered  to  sell,  and 
the  lessee  purchased  the  reversion.  Sir  W.  Page-  Wood,  V.  -C,  acting 
upon  the  principles  laid  down  by  Lord  Redesdale  in  Erans  v. 
Walshe,  made  the  following  decree:  "The  defendants  offering  to 
convey  the  reversion  in  fee  simple  of  the  premises  comprised  in  the 
plaintift^'s  lease,  in  preference  to  granting  a  new  lease  of  the  premises 
with  a  covenant  for  perpetual  renewal  and  otherwise  on  the  terms 
of  the  present  lease,  declare  that  the  plaintiff  is  entitled  to  have  such 
reversion  conveyed  to  him  on  the  terms  of  paying  the  defendants  a 
due  proportion  of  the  consideration  paid  or  given  by  them,  and  of 
the  expenses  incurred  by  them,  in  purchasing  the  fee  simple  of  so 
much  of  the  property  comprised  in  their  original  lease  as  they  did 

139 


*  71  KEECH  V.  SANDFORD. 

purchase,  regard  being  had  to  the  existing  interest  of  the  plaintiff 
under  his  lease,  and  to  the  extent  of  the  property  therein  com- 
prised. Then  there  must  be  an  inquiry  what  this  interest  is  worth." 
See  also  Pilkingfon  v.  Gore,  8  Ir.  Ch.  Rep.  589;  Trumjjer  v. 
Trumper,  U  L.  R.  Eq.  295,  310;  8  L.  R.  Ch.  App.  870. 

A  lessee,  moreover,  cannot,  by  obtaining  a  new  lease,  omitting 
provisions  contained  in  the  former  lease,  and  upon  the  faith  of 
which  he  induced  another  person  to  take  a  sub-lease,  act  in  con- 
travention of  such  provisions  to  the  injury  of  the  sub-lessee.  See 
Figgott  V.  Stratton,  Johns.  341. 

And  where  a  trustee  or  a  person  in  any  degree  holding  a  fiduciary 
position  has  acquired  the  legal  possession  of,  and  dominion  over, 
an  estate,  subject  to  a  covenant  for  perpetual  renewal,  and  should 
so  deal  with  the  property  as  to  make  the  renewal  impossible,  by  his 
own  act  and  for  his  own  benefit,  he  is  bound  to  give  full  effect  to 
the  charges  on  the  trust  estate,  and  to  satisfy  those  charges  out  of 
the  acquired  estate,  so  far  as  might  be  necessary.  See  Trumper  v. 
Trumper,  14  L.  R.  Eq.  295,  310;  8  L.  R.  Ch.  App.  870. 

{Doctrine  of  Constructive  Trusts  Restated. — If  a  person  obtains 
the  legal  title  to  property  by  such  arts  or  acts  or  circumstances  of 
circumvention,  imposition,  or  fraud,  or  if  he  obtains  it  by  virtue  of 
a  confidential  relation  and  influence  under  such  circumstances  that 
he  ought  not,  according  to  the  rules  of  equity  and  good  conscience  as 
administered  in  chancery  to  hold  and  enjoy  the  beneficial  interest 
of  the  property,  courts  of  equity  in  order  to  administer  complete 
justice  between  the  parties  will  raise  a  trust  by  construction  out  of 
such  circumstances  or  relations;  and  this  trust  they  will  fasten  upon 
the  conscience  of  the  ofi"ending  party  and  they  will  convert  him  into 
a  trustee  of  the  legal  title,  and  order  him  to  hold  it  or  to  execute  the 
trust  in  such  manner  as  to  protect  the  rights  of  the  defrauded  party 
and  to  promote  the  safety  and  interest  of  society.  Such  trusts  are 
called  Constracties trusts:  Perry  on  Trusts,  192;  Hendrix u  Minn, 
46  Texas,  141;  Billow  v.  Brown,  26  A.  K.  240;  McLane  v.  Johnson, 
432-48;  Thompsons.  Thompson,  16  Wis.  91;  Hollinshed  r.  Simms, 
51  Cal.  158. 

The  party  guilty  of  the  fraud  is  called  a  trustee  ex  malifacio. ^ 

One  of  the  most  ordinary  kinds  of  trusts  of  this  class  is  that  which 
grows  out  of  the  rule  of  law  which  forbid  a  trustee  or  any  other 
person  who  occupies  a  fiduciary  relation  from  gaining  any  personal 
advantage  touching  the  thing  or  subject  as  to  which  such  fiduciary 
position  exists. 

The  rule  applies  to  trustees,  agents,  attorneys,  executors  and  ad- 
ministrators also  to  those  who  occupy  any  position  out  of  which  a 
similar  duty  ought  in  equity  and  good  morals  to  arise.  The  rule 
will  be  enforced  against  attorneys-at-law,  partners,  tenants  for  life, 
tenants  in  common,  tenants  for  years,  mortgagees,  a  husband,  and 
vendees  under  articles:  see  Stephens  v.  Black,  27  P.  F.  Smith,  138; 
140 


KEECH  V.  SAXDFORD.  '  *  71 

Matjews  Appeal,  104  Pa.  St.  444;  Woodlee  v.  Barch,  43  Mo.  231; 
Hyndman  v.  Hyndman,  19  Vt.  9;  Dickenson  v.  Codivise,  1  Sand.  F. 
Ch.  227;  CusLing  v.  Danfortb,  H.  M.  114;  Moore  v.  Brecken,  27 
111.  23. 

A  constructive  trust  will  also  arise  if  a  person  obtains  property 
from  a  trustee  without  paying  for  it.  The  method  of  enforcing  those 
trusts  is  by  a  bill  to  compel  the  conveyance  of  the  legal  title. 

The  statute  of  frauds  will  not  interfere  with  the  proof  of  fraud 
either  constructive  or  active:  Ryan  v.  Dox,  34  N.  Y.  307;  Camp- 
bell V.  Dearborn,  100  Mass.  130. 

Constructive,  like  resulting,  trusts  do  not  fall  Avithin  the  statute 
of  fraud.  This  has  been  the  uniform  doctrine  both  the  English  and 
American  counts. 

A  person  who  is  7i07i  compis  mentis  cannot  make  a  binding  con- 
tract and  if  such  a  person  makes  a  deed  it  will  be  either  void  or 
voidable  and  equity  will  declare  the  party  to  whom  the  conveyance 
has  been  made  to  be  a  trustee  for  the  beneht  of  the  insane  person. 

The  courts  do  not  measure  the  extent  of  a  person  understanding. 

A  person  may  not  be  insane  or  an  idiot  but  may  have  a  very  low 
order  of  intelligence  and  weak  reasoning  powers,  and  contracts  with 
such  persons  will  be  carefully  investigated  and  the  conduct  of  the 
person  who  procures  the  contract  will  be  carefully  watched. 

A  person's  weak  mind  is  often  a  verymaterial  fact  in  determining 
the  character  of  a  transaction,  and  if  any  unfairness  on  any  undue 
influence  has  been  exercised  the  court  will  set  the  contract  aside,  or 
convert  the  offending  party  into  a  trustee. 

If  the  contract  is  without  adequate  consideration,  or  is  of  an 
extraordinary  character  the  courts  will  interfere  and  protect  a  weak- 
minded  person:  Hunt  v.  Moore,  2  Barr.  105;  Hutchinson  v.  Tindall, 
2  Green.  Ch.  357;  Brice  v.  Brice,  5  Barb.  533;  Cruise  v.  Christopher, 
5  Dana.  181:  McCraid  v.  Davis,  2  Ired.  618;  Kennedy  v.  Kennedy, 
2.  The  rule  stated  apply  also  to  a  drunken  person  because  while  a 
drunken  person  is  laboring  under  the  frenzy  of  drink  he  is  non 
compis  mentis:  Coke  Litt,  247  a;  Barrett  r.  Buxton,  2  Ark.  167; 
Harbison  v.  Temon,  3  Black.  51;  Calloway  v.  "VVetherspoon,  5  Ired. 
Eq.  128;  Phillips  V.  Moore,  11  Miss.  600. 

Equity  will  also  relieve  in  all  cases  of  contracts  procured  by  fear, 
duress  or  apprehension:  Davis  v.  McNally,  5  Sneed  583;  Graham 
V.  Pittle,  3  Jones  Eq.  152;  Stewart  v.  Hubbard,  3  Jones  Eq.  186. 

Trustees  are  not  allowed  to  purchase  at  their  owa  sales,  this  is 
so,  even  if  the  property  is  sold  at  public  sale  and  the  trustee  is  the 
highest  bidder  and  if  he  does  purchase,  he  will  be  considered,  at 
the  option  of  the  cestui  que  trust,  a  trustee  by  equitable  construc- 
tion. This  rule  proceeds  on  the  ground  of  public  policy.  Trustees 
are  however,  sometimes  allowed  to  bid  at  their  own  sale  by  order 
of  court,  but  their  conduct  is  closely  watched :  Cadwallader's  Appeal, 
14  P.  F.  Smith,  293;  Dundas's  Appeal,  14  P.  F.  Smith,  325. 

Constructive  trusts  sometimes  arise  out  of  contract.     Thus  if  a 

141 


*  71  KEECH  V.  SANDFORD. 

contract  lias  been  entered  into  for  the  sale  of  a  parcel  of  land, 
equity  will  look  vipon  the  things  agreed  upon  as  actually  having 
taken  place  whether  in  point  of  fact  they  have  actually  taken  place 
or  not  and  the  vendor  will  be  considered  as  a  trustee  of  the  legal 
title  for  the  buyer  and  the  buyer  will  be  considered  as  a  trustee  of 
the  purchase  money  for  the  vendor. 

Lapse  of  time  will  bar  a  constructive  trust.  It  is  impossible  to 
state  an  exact  time,  it  seems  that  it  depends  upon  the  circumstances 
of  each  case:  Michond  v.  Girod,  4  How.  561;  Boone  v.  Chiles,  10 
Peters,  177. 

The  statute  of  limitations  does  not  necessarily  control  as  to  the 
time  in  which  relief  is  to  be  sought. 

But  in  some  states  the  statute  is  applied  to  constructive  trusts 
unless  they  are  concealed  or  undiscovered:  Flicker  v.  Flinn,  30 
Md.  202;  Farnham  u.  Brooks,  9  Pick.  212;  Ashurt's  Appeal,  60  Pa. 
St.  290. 

In  other  states  in  analogy  to  the  statute  which  bars  a  real  action 
after  twenty  years  relief  must  be  brought  within  that  time.  Perry 
V.  Craig,  3  Miss.  523;  Field  v.  Wilson,  6  B.  Mon.  479;  Thompson 
V.  Blair,  3  Murph.  593. 

A  stranger  to  a  trust  who  acts  as  an  agent  of  the  trustee  in  a 
transaction  within  his  legal  power  is  not  to  be  held  liable  as  a  con- 
structive trustee,  unless  he  receives  and  becomes  chargeable  with 
part  of  the  trust  property,  or  unless  he  acts  with  knowledge  of  a 
dishonest  and  fraudulent  design  on  the  part  of  the  trustee. 

Constructive  trusts  constitute  a  very  important  part  of  the 
machinery  which  is  made  use  of  by  the  courts  of  equity  in  the  ad- 
ministration of  justice.] 


142 


ELLIOT  V.  MERRYMAN.  *  73 


*  ELLIOT  V.  MERRYMAN.  [*72] 


July  1st,  1740,  at  the  Rolls. 
[reported  barnardiston's  chancery  reports,  78.] 

Liability  of  Purchaser  to  see  to  the  Application  of  his  Purchase- 
money.] — A  purchaser  of  personalty  from  an  executor  will  not  be 
held  liable  to  see  to  the  application  of  the  purchase  money,  excepA 
in  cases  of  fraud. 

It  is  a  general  rule,  that,  ivhere  real  estate  is  devised  to  trustees, 
upon  trust  to  sell  for  payment  of  debts  generally,  the  purchaser  is 
not  bound  to  see  that  the  money  is  rightly  applied.  The  same 
rule  applies  where  real  estate  is  not  devised  to  be  sold  for  the 
payment  of  debts,  but  is  only  charged  with  such  payment. 

If  real  estate  is  devised  upon  trust  to  be  sold  for  the  payment  of 
certain  debts,  mentioning  to  ivhom  in  particular  those  debts  are 
owing,  the  purchaser  is  bound  to  see  that  the  money  is  applied  for 
the  payment  of  those  debts. 

Thomas  Smith  became  indebted  to  several  persons  by  bond,  and 
likewise  by  simple  contract.  In  three  of  those  bonds  Goodwin  was 
bound  with  him  as  surety;  and  afterwards  Goodwin  gave  his  own 
bond  alone  to  one  of  the  creditors,  to  whom  Smith  was  bound  in  a 
single  bond.  Smith,  being  thus  indebted,  made  his  will,  and  in  the 
beginning  of  it,  says,  '■'■my  ivill  is,  that  all  my  debts  be  paid;  and  I 
do  charge  all  my  lands  ivifh  the  payment  thereof.'^  Then  came  the 
clause,  upon  which,  together  with  the  other  circumstances  of  the 
case,  the  present  question  principally  determines.     "Item. — I  give 

all  my  real  and  personal  estate  to Goodwin,  to  hold  to  him, 

his  heirs,  executors,  administrators,  and  assigns,  chargeable,  never- 
theless, with  the  payment  of  all  my  debts  and  legacies.^^  Of  this  will 
he  made  Goodwin  his  executor. 

*  The  testator  died  in  1724;  Goodwin  proved  the  will,  and  [  *  73  ] 
in  that  same  year  sold  a  freehold  estate  of   the  testator's 
to  Hunt;  in  the  year  following  sold  a  leasehold  estate  of  the  testator's 

143 


*  74:  ELLIOT  V.  MERRYMAN. 

to  "Wright;  and,  in  1727,  sold  another  estate  of  the  testator's  consist- 
ing of  both  freehold  and  leasehold,  to  Merryman. 

In  the  several  deeds  by  which  these  estates  were  conveyed  from 
Goodwin  to  the  purchasers,  the  will  of  Smith  was  recited;  and  to 
one  of  those  deeds  Elliot,  a  creditor  of  Smith's,  was  a  subscribing 
witness.  These  lands  were  sold  in  the  neighbourhood  by  outcry. 
At  the  time  of  these  sales,  the  creditors,  all  of  them,  either  lived 
in  the  town  where  Goodwin  lived,  or  within  three  or  four  miles  of 
it.  During  all  this  time,  and  till  the  year  1730,  the  creditors  went 
on  regularly  receiving  their  interest,  which  was  at  5Z.  per  cent.,  of 
Goodwin.  Goodwin  was  a  solvent  man  till  1732,  and  then  he  be- 
came a  bankrupt. 

In  1734  the  present  bill  was  brought  by  the  creditors  of  Smith 
against  the  purchasers  of  these  lands  that  have  been  mentioned, 
against  Goodwin,  and  against  the  assignees  under  his  commission, 
in  order  to  have  a  satisfaction  of  their  debts  out  of  those  lands 
which  were  sold  by  Goodwin. 

Mr.  Chute  argued  on  the  part  of  the  plaintifPs,  and  for  authority 
cited  2  Vern.  528  (o),  616  (p),  Pagett  v.  Hoskins,  in  Precedents  in 
Chancery  (q),  and  the  case  of  Morley  v.  Wehh,  determined  by  the 
present  Chancellor  [Lord  Hardwicke]. 

Mr.  Idle,  on  the  same  side,  cited  2  Vern.  444  (r);  and  on  the 
same  side  Mr.  Murray  cited  the  case  of  Nugent  v.  Gifford,  (s),  de- 
termined by  the  present  Chancellor. 

Mr.  Broivn  argued  as  counsel  for  Hunt  and  Wright,  and  for  au- 
thority cited  2  Cha.  Ca.  115  (t),  and  the  case  of  Abbott  v.  Gibbs  (w). 

Mr.  Noel  argued  on  the  same  side,  and  cited  1  Vern.  45  (v), 
411  (to)  and  Williams,  430  (x). 

Mr.  Hoskins  argued  as  counsel  for  Merryman,  and  cited  1  Vern. 
303  (y). 
[  *  74  ]     *  The  Hon.  John  Verney,  M.  R. — His  Honor  said,  his  opin- 
ion was  that  the  plaintiffs  were  not  entitled  to  the  relief 

(o)  Chadwick  i\  Doleman. 

(p)  Crane  v.  Drake. 

(q)  Prec.  Ch.  431. 

(r)  Humble  v.  Bill. 

(s)  1  Atk.  463. 

(<)  Culpepper  ?'.  Aston. 

(m)  1  Eq.  Ca.  Abr.  358. 

(t)  Newman  v.  Johnson. 

(w)  Clowdsley  v.  Pelham, 

(x)  Freemoult  i'.  Dedire,  1  P.  Wms.  430.  {y)  Spalding  v.  Chalmer, 

144 


ELLIOT  V.  MERRYMAN.  *  (5 

they  sought  by  the  bill.  He  said  it  was  very  true,  that  it  was  almost 
impossible  to  make  a  determination  iu  the  present  case,  but  that  it 
must  fall  out  unfortunately  on  the  one  party  or  the  other.  The 
dispute  arising  between  creditors  on  the  one  side,  and  purchasers 
on  the  other,  both  these  sorts  of  persons  are  entitled  to  the  favour 
of  this  Court;  and  in  the  present  case  a  misfortune  must  fall  upon 
one  of  them.  On  whom  it  is  to  fall  is  the  question.  And  this  is  a 
question  that  must  so  frequently  have  happened,  that  it  is  extraor- 
dinary to  find  no  detei'mi nation  directly  in  point. 

The  case  is  this: — Thomas  Smith,  being  possessed  of  a  real  and 
personal  estate,  was  indebted  to  several  persons  by  bond,  in  three 
of  which  bonds  Goodwin  was  bound  with  him  as  Hurety;  and  he 
had  contracted  likewise  some  other  debts;  and  being  thus  indebted 
he  makes  his  will  to  the  following  effect.  The  will  begins  with  this 
introduction: — "My  will  is,  that  all  my  debts  be  paid;  and  I  do 
charge  all  my  lands  with  the  payment  thereof.     Item. — I  give  all 

my  real  and  personal  estate  to Goodwin,  to  hold  to  him, 

his  heirs,  executors,  administrators,  and  assigns,  chargeable  never- 
theless with  the  payment  of  my  debts  and  legacies."  'Tis  indeed 
true  that  these  words  do  not  amount  to  a  devise  of  the  lands  to  be 
sold  for  the  payment  of  the  debts;  and  they  only  import  a  charge  upon 
them  for  that  purpose.  However,  this  is  such  a  devise  as  is  within 
the  meaning  of  the  proviso  of  the  Statute  of  Fraudulent  Devises 
(3  W.  &  M.  c.  14,  repealed  by  11  Geo.  4  &  1  Will.  4,  c.  47),  and 
does  interrupt  the  descent  to  the  heir-at-law.  By  this  will  the  de- 
visee was  made  executor. 

The  testator  died  in  1724.  Goodwin  paid  interest  for  the  debts 
at  t>l.  per  cent,  regularly  till  1730.  After  the  testator's  death,  three 
sales  of  this  estate  were  made  by  Goodwin:  one,  of  an  estate  which 
was  entirely  freehold;  the  other,  of  an  estate  entirely  leasehold; 
and  a  third,  consisting  of  freehold  and  leasehold  both. 

*  The  bill  in  general  is  brought  by  the  creditors  of  Smith  [  *  75  ] 
against  the  purchasers,  in  order  to  have  a  payment  of  their 
debts  out  of  the  lands  of  Smith,  which  were  sold  to  them  by  Good- 
win. 

With  regard  to  the  leasehold  estate,  the  case  is  so  extremely  plain, 
that  the  sale  of  that  must  stand,  and  that  the  creditors  cannot  have 
a  satisfaction  out  of  it,  that  his  Honor  said  it  would  be  monstrous 
to  call  it  in  question.  The  executors  are  the  proper  persons  that, 
by  law,  have  a  power  to  dispose  of  a  testator's  personal  estate.     'Tis 

10  WHITE   ON   EQUITY.  145 


*  76  .ELLIOT  V.  MERRY  MAN. 

indeed  true  that  personal  estate  may  be  clothed  with  such  a  particu- 
lar trust  (z),  that  it  is  possible  the  Court  in  some  cases  may  require 
a  purchaser  of  it  to  see  the  money  rightly  applied.  But  unless 
there  is  some  such  j^cirticular  trust  or  a  fraud  in  the  case,  it  is  im- 
possible to  say  but  the  sale  of  a  personal  estate,  when  made  by  an 
executor,  must  stand ;  and  that  after  the  sale  is  made,  the  creditors 
cannot  break  in  upon  it. 

His  Honor  said,  he  would  now  consider  the  other  sales  that  have 
been  made,  and  would  examine  those,  first  upon  the  general  rules 
of  the  Court,  and  in  the  next  place  upon  the  particular  circumstances 
which  this  case  is  attended  with. 

With  regard  to  the  first  of  these  matters,  the  general  rule  is  that 
if  a  trust  directs  that  land  should  be  sold  for  the  payment  of  debts 
generally,  the  purchaser  is  not  bound  to  see  that  the  money  be  rightly 
applied.  On  the  other  hand,  if  the  trust  directs  that  lands  shoidd 
be  sold  for  the  payment  of  certain  debts,  mentioning,  in  particidar, 
to  whom  those  debts  were  owing,  the  purchaser  is  bound  to  see  that 
the  money  be  applied  for  the  payment  of  those  debts. 

The  present  case,  indeed,  does  not  fall  within  either  of  these 
rules,  because  here  lands  are  not  given  tobe  sold  for  the  payment  of 
debts,  but  are  only  charged  with  sucli  payment.  However,  the  ques- 
tion is,  ivhether  that  circumstance  makes  any  difference.  And  his 
Honor  ivas  of  opinion  that  it  did  not.  And  if  such  a  distinction 
was  to  be  made,  the  consequence  would  be,  that  whenever 
[  *  76  ]  lands  *  are  charged  with  the  payment  of  debts  generally, 
they  could  never  be  discharged  of  that  trust  without 
a  suit  in  this  Court,  which  would  be  extremely  inconvenient. 
No  instances  have  been  produced  to  show  that  in  any  other 
respect  the  charging  lands  ivith  the  payment  of  debts  differs 
from  the  directing  them  to  be  sold  for  such  a  purpose;  and  there- 
fore there  is  no  reason  that  there  should  be  a  difference  established 
in  this  respect.  The  only  objection  that  seemed  to  be  of  weight 
with  regard  to  this  matter  is,  that  where  lands  are  appointed  to  be 
sold  for  the  payments  of  debts  generally,  the  trusts  may  be  said  to 
be  performed  as  soon  as  these  lands  are  sold;  but  where  they  are 
only  charged  with  the  payment  of  debts,  it  may  be  said  that  the 
trust  is  not  performed  till  those  debts  are  discharged.  And  so  far, 
indeed,  is  true  that  where  lands  are  charged  with  the  payment  of 
annuities,  those  lands  will  be  charged  in  the  hands   of  "the  pur- 

{z)  See  Bonney  v.  Ridgard,  4  Bro.  C.  C.  130;  1  Cox,  145. 
146 


ELLIOT  V.  MERRYMAN.  *  77 

chaser  (a),  because  it  was  the  very  purpose  of  making  the  lands  a 
fund  for  that  payment,  that  it  should  bo  a  constant  and  subsisting 
fund;  but  where  lands  are  not  burdened  with  such  a  subsisting 
charge,  the  purchaser  ought  not  to  be  bound  to  look  to  the  ap})li- 
cation  of  the  money;  and  that  seems  to  be  the  true  construction. 

Having  thus  considered  the  case  under  the  general  rule,  his 
Honor  said  he  would  now  consider  it  under  the  particular  circum- 
stances that  attend  it;  and  the  particular  circumstances  are  such  as 
are  far  from  strengthening  the  plaintiff's  case,  but  rather  the  con- 
trary. 

One  of  those  circumstances  is  the  length  of  time  the  plaintiffs 
have  lain  by,  without  at  all  insisting  on  any  charge  upon  these 
estates.  Goodwin  was  a  solvent  man  till  his  bankruptcy,  in  1732. 
Here  have  been  three  purchases  of  these  estates,  made  at  different 
times — the  one  in  1727,  the  other  two  in  1725  and  1724.  The  first 
of  them  was  made  by  Hunt,  the  second  by  Wright,  and  the  third 
by  Merryman.  During  all  these  transactions  the  plaintiffs  do  not 
mention  one  word  of  their  charge  upon  this  estate;  but,  on  the  con- 
trary, regularly  received  their  interest  of  Goodwin  till  the 
year  1730.  It  is  indeed  *  true,  that  there  is  no  express  proof  [  *  77  ] 
that  the  plaintiffs  knew  of  these  purchases,  but  there  is 
reason  to  imagine  that  they  did.  The  purchases  were  made  in  the 
neighbourhood  by  outcry;  some  of  the  creditors  lived  in  the  same 
town  that  Goodwin  did;  and  all  of  them  lived  within  three  or  four 
miles  of  him;  and  Elliott,  one  of  the  creditors,  was  a  subscribing 
witness  to  one  of  the  purchase  deeds.  The  want  of  notice,  too,  on 
the  part  of  the  purchasers,  is  a  considerable  circumstance  in  their 
favour.  It  is  indeed  true,  that  they  had  notice  that  there  were 
debts  chargeable  upon  this  estate;  but  it  does  not  appear  they 
knew  to  Avhom  those  debts  were  owing.  Another  circumstance  is, 
that  Goodwin  was  a  co-obJigor  iu  three  of  these  bonds,  and  to  an- 
other of  the  obligees  he  afterwards  gave  his  bond  alone,  which  may 
well  be  considered  as  a  satisfaction  for  that  bond.  By  this  it  ap- 
pears that  the  creditors  greatly  relied  upon  Goodwin  for  their  pay- 
master; and  there  is  not  much  reason  therefore  that  they  should 
now  be  allowed  to  resort  to  the  testator's  estate. 

Upon  the  whole,  his  Honor's  opinion  was  that  the  plaintiff's  bills 
must  be  dismissed;  and  even  with  costs,  as  against  Wright,  there 

(rt)  Not,  it  seems,  if  there  is  also  a  charge  of  debts.  See  Page  v.  Adam,  4 
Beav.  269. 

147 


*  78  ELLIOT  V.  MERRYMAN. 

being  no  manner  of  pretence  for  the  plaintiffs  to  come  upon  that 
estate,  it  being  all  leasehold  and  sold  to  Wright  by  the  executor, 
who  by  law  is  the  proper  person  entrusted  to  dispose  of  the  testa- 
tor's personal  estate.  However,  with  regard  to  the  rest  of  the  de- 
fendants, his  Honor  said  he  would  only  dismiss  the  bill  generally 
without  costs;  and  so  he  was  pleased  to  decree  accordingly. 


Elliott  V.  Merryman  is  always  cited  as  a  leading  case,  wherever 
the  question  arises  as  to  the  liability  of  a  purchaser  to  see  to  the 
application  of  his  purchase-money.  See  Bonney  v.  Ridgard,  1  Cox, 
147;  jSVLeod  v.  Drummond,  17  Ves.  162;  Shaiv  v.  Bonder,  1  Keen, 
547;  and  Colyer  v.  Finch,  5  H.  L.  Cas.  923;  where  the  rules  laid 
down  in  that  case  were  approved  of  and  adopted. 

It  will  perhaps  be  more  convenient,  before  examining  the  deci- 
sions upon  this  and  kindred  subjects,  to  notice  the  legislative 
[  *  78]  *  enactments,  by  which  the  law,  as  laid  down  by  the  Court, 
has  been  from  time  to  time  modified  and  altered. 

First  it  was  enacted  by  the  Act  for  Simplifying  the  Transfer  of 
Real  Property  (7  &  8  Vict.  c.  76,  s.lO),  taking  effect  fi^om  December 
31,  1844,  that  the  bond  fide  payment  to,  and  the  receipt  of,  any  per- 
son to  whom  any  money  should  be  payable  upon  any  express  or 
implied  trust,  or  for  any  limited  purpose,  should  effectually  dis- 
charge the  person  paying  the  same  from  seeing  to  the  application 
or  being  answerable  for  the  misapplication  thereof,  unless  the  con- 
ti'aiy  should  be  expre'^sly  declared  by  the  instrument  creating  the 
trust  or  security.  This  Act  was,  however,  repealed  by  the  Law  of 
Real  Property  Amendment  Act  (8  &  9  Vict.  c.  106),  which  takes 
effect,  as  to  this  section  of  the  repealed  Act,  from  October  1st,  1845. 
With  regard  to  wills  executed  whilst  the  Act  7  &  8  Vict.  c.  76,  was 
in  force,  such  wills  must  be  construed  as  having  annexed  to  the 
trusts  the  incidents  resulting  from  the  then  existing  state  of  the 
law,  and  that  the  incidents  of  the  trusts,  as  so  defined,  were  not 
altered  by  the  change  in  the  law:  3  Dav.  Conv.  by  Waley,  164. 

By  the  Property  and  Trustees  Relief  Amendment  Act  (22  &  23 
Vict.  c.  35),  which  came  into  operation  on  the  13//i  August,  1859, 
it  is  enacted  that  "  The  bond  fide  payment  to,  and  the  receipt  of  any 
person  to  whom  any  purchase  or  mortgage  money  shall  be  payable 
upon  any  express  or  implied  trust,  shall  effectually  discharge  the 
person  paying  the  same  from  seeing  to  the  application,  or  being 
answerable  for  the  misapplication  thereof,  unless  the  contrary  shall 
be  expressly  declared  by  the  instrument  creating  the  trust  or  se- 
curity "  (sect.  23). 

It  will  be  observed  that  the  23rd  section  applies  only  to  payments 
made  by  or  to  x)urchasers  and   mortgagees. 

A  more  comprehensive  power  is  given  by  Lord  Cranworth's  Act 
148 


ELLIOT  V.  MERRYMAN.  *  79 

(23  &  24  Vict.  c.  145),  passed  the  28th  August,  1860,  which  enacts 
that  "the  receipts  in  writing  of  any  trustees  or  trustee,  tor  ani/ 
mo  net/  payable  to  them  or  him,  by  reason  or  in  the  exercise  of  any 
trusts  or  powers  reposed  or  vested  in  them  or  him,  shall  be  sutli- 
cient  discharges  for  the  money  therein  expressed  to  be  received,  and 
shall  effectually  exonerate  the  persons  paying  such  money  from 
seeing  to  the  application  thereof,  or  from  being  answerable  for  any 
loss  or  misapplication  thereof"  (sect.  29). 

A  subsequent  section,  however,  enacts,  that  "the  provisions  con- 
tained in  this  Act  shall,  except  as  hereinbefoi'e  otherwise  provided, 
extend  only  to  persons  entitled  or  acting  under  a  deed,  will,  codicil, 
or  other  instrument  executed  after  the  passing  of  this  Act 
or  under  a  will  or  codicil  confirmed  or  revived  *  by  a  codi-  [  *  79  J 
cil  executed  after  that  date"  (sect.  34). 

The  29th  section  of  Lord  Cranworth's  Act  (23  &  24  Vict.  c.  145) 
is  repealed  by  the  71st  section  of  the  Conveyancing  and  Law  of 
Property  Act,  1881  (44  &  45  Vict.  c.  41),  which  came  into  opera- 
tion from  and  after  the  31st  of  December,  1881.  So  that  the  29th 
section  of  Lord  Cranworth's  Act  only  applies  to  receipts  from  trus- 
tees between  the  28th  of  August,  1860,  and  the  31st  of  December, 
1881. 

It  is  replaced  by  a  much  more  comprehensive  enactment  in  the 
Conveyancing  and  Law  of  Property  Act,  1881  (44  &  45  Vict.  c. 
41),  whereby  it  is  enacted  that  "the  receipt  in  writing  of  any  trus- 
tees or  trustee  for  any  money,  securities,  or  other  personal  property 
or  effects  payable,  transferable,  or  deliverable  to  them  or  him  under 
any  trust  or  power  shall  be  a  sufficient  discharge  for  the  same,  and 
shall  effectually  exonerate  the  person  paying,  transferring  or  deliv- 
ering the  same  from  seeing  to  the  application  or  being  answerable 
for  any  loss  or  misapplication  thereof."     Sect.  36,  sub-s.  1. 

This  section  applies  to  trusts  created  either  before  or  ^'■after  the 
commencement  of  this  AcV^  (sub-s.  2.)  See  In  re  lliomas'a  Settle- 
ment, W.  N.  1882,  p.  7. 

Again,  under  the  Settled  Land  Act,  1882  (45  &  46  Vict.  c.  38), 
coming  into  operation,  except  as  therein  otherwise  expressed,  from 
and  after  the  31st  of  December,  1882,  it  is  enacted  that  "the  re- 
ceipt in  writing  of  the  trustees  of  a  settlement,  or  where  one  trus- 
tee is  empowered  to  act,  of  one  trustee  or  the  personal  rep- 
resentatives or  representative  of  the  last  surviving  or  continuing 
trustee^  for  any  money  or  securities  paid  or  transferred  to  trustees, 
trustee,  representatives,  or  representative,  as  the  case  may  be,  eff'ect- 
ually  discharges  the  payer  or  transferor  therefrom,  and  from  being 
bound  to  see  to  the  application  or  being  answerable  for  any  loss  or 
misapplication  thereof,  and  in  case  of  a  mortgagee  or  other 
person  advancing  money,  fi-om  being  concerned  to  see  that  any 
money  advanced  by  him  is  wanted  for  any  purpose  of  this  Act,  or 
that  no  more  than  is  wanted  is  raised."     Sect.  40. 

Although  recent  legislation  has  rendered  the  subject  of  this  note 

149 


*  so  ELLIOT  V.  MERRYMAN. 

of  less  practical  importance,  it  is  still  necessary  to  bear  it  in  mind, 
should  cases  occur  which  do  not  fall"  within  the  meaning  of  the  en- 
actments now  to  force,  and,  above  all  in  the  investigations  of  titles, 
in  which  it  may  often  be  necessary  still  to  consider  whether  trus- 
tees had  or  not  power  to  give  receipts. 

[In  the  United  States  this  doctrine  was  never  received  with  any 
favor.] 

It  is  proposed  now  to  consider:  First,  the  liability  of  purchasers 
of  real  estate  to  see  to  the  application  of  the  purchase-money.  Sec- 
ondly, as  to  whether  charges  of  debts,  legacies,  or  other  specific 
sums  on  real  estate,  give  power  to  the  executors  or  devisees 
[  *  80  ]  to  sell.  *  Thirdly,  how  far  real  estate  in  the  hands  of  an 
alienee  of  the  devisee  or  heir-at-law  is  liable  for  debts. 
And  fourthly,  as  to  the  liability  of  purchasers  of  personalty  from 
execu.tors  to  see  to  the  application  of  the  purchase-money. 

1.  Liability  of  Purchasers  of  Real  Estate  to  see  to  the  Applica- 
tion of  the  Purchase-money.^ — From  the  decisions  of  the  Courts, 
irrespective  of  the  legislative  enactments,  which  have  just  been 
noticed,  it  is  clear  that  trustees  in  whom  real  property  is  vested, 
upon  trust  for  sale,  can  at  law  give  a  valid  discharge  for  the  pur- 
chase-money, because  they  are  at  law  the  owners.  In  equity,  how- 
ever, the  persons  amongst  whom  the  produce  of  the  sale  is  to  be 
distributed  are  considered  the  owners;  and  Courts  of  equity  have 
therefore  held  that  a  purchaser  must  obtain  a  discharge  fi'om  them 
unless  the  power  of  giving  receipts  is  either  expressly  or  by  im- 
plication given  to  the  trustees.  If  no  such  discharge  is  given,  and 
the  trustees  have  no  power  to  give  receipts,  the  estate,  upon  a  mis- 
application of  the  purchase-money,  will  remain  chargeable  in  the 
hands  of  the  purchaser. 

Where  a  power  of  giving  receipts  is  in  express  terms  conferred 
upon  trustees,  the  purchaser  will  not,  in  cases  free  from  fraud  and 
collusion,  be  bound  to  see  to  the  application  of  the  purchase-money. 

[If  the  settlor  expressly  provides  that  the  receipt  of  the  trustees 
shall  be  sufficient  discharges  of  the  purchase-money  the  cestui  que 
trust  cannot  claim  in  opposition  to  the  instrument,  that  confers  upon 
them  all  their  rights;  in  other  words,  they  cannot  claim  under  one 
part  of  the  instrument,  and  reject  the  other  parts:  Perry  on  Trust, 
Sec.  791.] 

Where,  however,  no  such  power  is  in  express  terms  given,  much 
difficulty  arises  in  ascertaining  the  liability  of  the  purchaser,  which 
depends  upon  the  question  whether  a  power  of  giving  receipts  can 
bo  implied. 

One  of  the  rules  laid  down  in  the  principal  case  (if  no  such 
power  be  expressly  given),  and  which  is  invariably  followed,  is, 
that,  if  a  trust  directs  lands  to  he  sold  for  payment  of  certain  debts, 
mentioning  in  particular  to  whom  thoi^e  debts  are  owing,  the  pur- 
chaser is  bound  to  see  that  the  money  is  apx>lied  for  the  p)aynient  of 
150 


ELLIOT  y.  MERIIYMAN.  *  81 

those  debts.  Seo  Dunch  \.  Kent,  1  Vern.  2G1 ;  Culpepper  v.  Aston, 
2  Ch.  Ca.  228;  Cotterell  v.  Hampson,  2  Vern.  5;  Lloyd  v.  Baldicin, 
1  Ves.  173;  Ithell  v.  Beane,  1  Ves.  215;  Dorcm  v.  Wiltshire,  3 
Swanst.  701;  Smith  x.  Guyon,  1  Bro.  C.  C.  180;  Ro<jers  v.  Skillicorne, 
Ami).  189;  i^iv^/v.s  v.  Rokeby,  2  Madd.  238. 

[If  the  trust  is  to  pay  a  particular  del)t  froTU  the  proceeds  of  a 
sale,  or  to  pay  certain  legacies  the  purchaser  must  see  that  the 
money  finds  its  way  into  the  hands  of  those  to  whom  it  belongs: 
Hoover  v.  Hoover.  5  Barr,  35 1 ;  Dalzell  v.  Crawford,  1  Parsons'  E(j. 
57;  Bugbee  t;.  Saygent,  23  Me.  2(H»;  Swasey  v.  Little,  7  Pick.  290; 
Leavitt  V.  Wooster,  14  N.  H.  550.] 

The  same  nile  is  applicable  also  where  there  is  a  trust  for  pay- 
ment of  legacies  or  annuities,  which,  fi-om  their  nature,  must  be 
considered  as  specified  or  scheduled  debts:  Johnson  v.  Kennett,ii 
My.  &  K.  030;  Horn  v.  Horn,  2  S.  &  S.  448. 

So  likewise,  if  property  were  vested  in  trustees  upon  trust  tosel 
and  divide  the  proceeds  amongst  certain  adult  cestui  que  trusts,  if 
no  power  of  giving  receipts  were  conferred  upon  the  trustees,  al- 
though they  might  convey  the  property  at  law,  nevertheless, 
as  in  equity,*  the  cestui  que  trusts  are  the  beneficial  own-    [  *  81  ] 
ers,  the  receipts  for  the  purchase-money  in  order  to  dis- 
charge the  purchaser  must  be  signed  by  them.     In  other  words,  the 
purchaser  is  bound  to  see  to  the  application  of  the  purchase-money, 
i  e.,  that  it  reaches  the  right  hands — those  of  the  cestui  que  trusts. 
See  Weatherby  v.  >SY.  Giorgio,  2  Hare,  024. 

In  cases  coming  within  this  rule,  as  the  trusts  are  of  a  limited  and 
definite  nature,  and  such  as  a  purchaser  might  withoiTt  inconven- 
ience see  properly  performed,  a  power  to  give  receipts  cannot  be  im- 
plied. 

AVhere,  however,  trustees  are  directed  to  sell  at  a  time  when  the 
persons  amongst  whom  they  are  to  distribute  the  proceeds  of  the  sale 
are  either  not  ascertainable  or  not  of  age,  it  must  be  implied  that 
the  settlor  or  testator  intended  by  implication  to  confer  upon  the 
trustees  a  power  of  giving  receipts,  inasmuch  as  the  money  could  not 
be  ])aid  at  the  time  of  the  sale  to  any  persons  but  the  trustees.  See 
Balfour  \\  Welland,  10  Yes.  151;  there  a  general  assignment  for  the 
benefit  of  certain  scheduled  creditors,  and  all  other  ci'edi tors  execut- 
ing the  deed,  was  made  to  E.  and  F.  upon  trust,  as  soon  as  coni^en- 
ienthj  might  be,  to  sell  the  assigned  property,  anduith  all  convenient 
speed  to  make  such  dividends  out  of  the  proceeds  among  the  cred- 
itors as  therein  mentioned;  and  the  deed  contained  a  provision  limit- 
ing the  time  for  creditors  to  execute  the  deed — six  months  for  cred- 
itors in  India,  and  eighteen  months  for  those  in  Europe,  unless  they 
were  disabled  by  minority,  in  which  cases  the  same  periods  were  to 
be  allowed  respectively  after  the  disability  had  ceased.  Upon  an 
objection  being  taken  by  a  purchaser  from  the  trustees  to  the  title 
of  a  leasehold  house,  on  the  ground  that  he  was  bound  to  see  to  the 
application  of  the  money  in  satisfaction  of  the  scheduled  creditors 

151 


*  82  ELLIOT  V.  MEKRYMAN. 

and  others  coming  within  a  limited  time  after  the  date  of  the  deed, 
Sir  William  Grant,  M.  R.,  overruled  the  objection,  upon  the  ground 
that  the  deed  clearly  conferred  an  immediate  power  of  sale  for  a  pur- 
pose that  could  not  be  immediately  defined,  \\z.,  to  pay  debts  ichich 
could  not  be  ascertained  until  a  future  and  distant  period.  *'  It  is 
impossible,"  observed  his  Honor,  "  to  contend,  that  the  trustees 
might  not  have  sold  the  whole  property  at  any  time  they  thought  fit 
after  the  execution  of  the  deed;  and  yet  it  could  not  be  ascertained 
until  the  end  of  eighteen  months  who  were  the  persons  among  whom 
the  produce  of  the  sale  was  to  be  distributed.  If  the  sale  might  take 
place  at  a  time  when  the  distribution  could  not  possibly  be  made,  it 
must  have  been  intended  that  the  trustees  should  of  themselves  be 
able  to  give  a  discharge  for  the  produce,  for  the  money  could 
[  *  82  ]  not  be  *  paid  to  any  other  person  than  the  trustees.  It  is 
not  material,  that  the  objects  of  the  trust  may  have  been 
actually  ascertained  before  the  sale.  The  deed  must  receive  its  con- 
struction as  from  the  moment  of  its  execution.  According  to  the 
frame  of  the  deed,  the  purchasers  were  or  were  not  liable  to  see  to 
the  application  of  the  money ;  and  their  liability  cannot  depend  upon 
any  subsequent  event."     See  also  Groom  v.  Booth,  1  Drew.  548. 

So,  likewise,  in  Sowarsby  v.  Lacy,  4  Madd.  142,  where  A.  devised 
certain  lands  to  his  children,  the  same  to  be  sold  when  the  executors 
and  trustees  of  his  will  should  see  proper,  and  the  purchase-money 
to  be  equally  and  severally  divided  amongst  his  children,  some  of 
whom  were  then  infants,  Sir  J.  Leach  said,  "It  is  plain  the  testator 
intended  that  the  trustees  should  have  an  immediate  power  of  sale. 
Some  of  the  children  were  infants,  and  not  capable  of  signing  re- 
ceipts. I  must,  therefore,  infer,  that  the  testator  meant  to  give  to 
the  trustees  the  power  to  sign  receipts,  being  an  authority  necessary 
for  the  execution  of  his  declared  purpose."  See  also  Lavender  v. 
Stanton,  6  Madd.  46;  Breedon  v.  Breedon,  1  Euss.  &  My.  413;  Keon 
V.  Magawly,  1  D.  &  W.  401. 

If,  however,  an  estate  is  charged  with  a  sum  of  money  payable  to 
an  infant  on  his  attaining  his  majority,  the  purchaser  will  be  bound 
to  see  the  money  duly  paid:  Dickenson  v.  Dickenson,  3  Bro.  C.  C. 
19. 

Where  money  to  arise  from  a  sale  is  not  merely  to  be  paid  to  cer- 
tain persons,  but  is  to  be  applied  by  the  trustees  upon  trusts  requir- 
ing care  and  discretion,  the  presumption  arises  that  the  settlor  in- 
tended to  confide  the  execution  of  the  trust  to  the  trustees  solely, 
and  the  purchaser  will  not  be  bound  to  see  to  the  application  of  the 
purchase- money.  Thus,  in  Doran  v.  Wiltshire,  3  Swanst.  699,  the 
trustees  were  to  receive  the  purchase-money,  and  to  lay  it  out  in  lands 
to  the  uses  of  the  settlement,  and  till  that  was  done  to  invest  it  in 
the  Government  funds.  Scott,  Solicitor-General,  urged  that  no  good 
title  could  be  made,  because  there  was  no  clause  in  the  settlement 
making  the  receipt  of  the  trustees  a  good  discharge  to  the  purchaser. 
But  Lord  Thurloiv  said,  "  As  to  the  power  which  the  trustees  have 
152 


ELLIOT  V.  MERRYMAN.  *  83 

of  giving  a  discharge,  it  is  true,  tbat,  wbGn  land  is  to  be  sold,  and  a 
particular  debt  is  to  be  paid  with  it,  tbe  pnrcbasor  is  bound  to  see  to 
the  application  of  tbe  purchase- money.  But  incases  where  the  ap- 
plication is  to  a  payment  of  debts  generally,  or  to  a  general  laying 
out  of  the  money,  he  knew  of  no  case  which  lays  down,  or  any  reason- 
ing in  any  case  which  goes  the  length  of  saying  that  a  pur- 
chaser is  so  bound;  and  therefore,  he  conceived  that  the  *re-  [  *  83  ] 
ceipt  of  the  trustees  would  be  a  good  discharge  in  this  case." 
See  also  Balfour^  v.  Welland,  10  Ves.  151 ;  Tait  v.  Lathhury,  35  Beav, 
112;  Ford  v.  Ryan,  4  Jr.  Ch.  Eep.  342. 

An  authority  given  by  a  testator  to  trustees  to  lay  out  and  invest 
money  upon  good  security  is  an  authority  to  do  all  acts  essential  to 
that  trust,  and  necessarily,  therefore,  to  give  sufficient  discharges 
to  borrowers  of  that  money;   Wood  v.  Harnimi,  5  Madd.  308. 

Upon  the  same  principle,  where  the  trusts  of  a  term  were  to  raise 
a  sum  of  money,  but  there  was  no  express  authority  to  give  a  re- 
ceipt for  such  sum,  it  was  implied  by  the  Court,  from  authority 
having  been  given  to  invest  the  money,  and  vary  the  investment. 
For  "it  is  not  reasonable,"  as  observed  by  Sir  J.  Parker,  V.-C,  "to 
suppose  that  the  testator,  giving  the  trustees  authority  to  change 
the  investments,  and  to  convert  them  from  time  to  time,  had  denied 
to  them  authority  to  receive  the  money:"  Locke  v.  Loiniis,  5  De  G. 
&  Sm.  320,  329.     See  Pell  v.  Ve  Winton,  2  De  G.  &  J.  13. 

Where,  however,  a  testator  gave  a  person  like  powers  of  sale  and 
exchange  as  were  contained  in  the  will  of  another  person,  in  which 
there  were  also  powers  to  give  receipts,  the  Court  held  that  such 
person  had  not  by  implication  a  power  to  give  receipts :  Cox  v.  Cox, 
1  K.  &  J.  251. 

Another  rule  laid  down  in  the  principal  case  id,  '■'■that  if  a  trust 
directs  the  land  to  be  sold  for  the  payment  of  debts  generally,  the 
purchaser  is  not  bound  to  see  that  the  money  be  rightly  applied  f  [If 
the  trust  is  generally  to  pay  debts,  the  purchaser  need  not  see  to 
the  application  of  the  purchase  money:  Potter  v.  Gardner,  12 
Wheat.  498,  Hauler  v.  Shore,  5  Ired.  Eq.  357 ;  Goodrich  v.  Proctor, 
1  Gray,  5*79;  Laurens  v.  Lucas,  6  Rich.  Eq.  217,]  and  it  was,  for 
the  first  time,  there  decided,  ^''that  it  makes  no  difference  ichether 
lands  are  given  to  be  sold  for  the  payment  of  debts  or  are  only  charged 
tcith  such  payment. 

The  principle  upon  which  this  rule  proceeds  appears  to  be  this  : 
that,  as  it  cannot  be  presumed  that  the  settlor  or  testator  could  ex- 
pect a  trust  of  so  general  and  unlimited  a  nature  to  be  undertaken 
by  a  purchaser,  it  is  to  be  implied  that  it  was  the  intention  of  the 
settlor  or  testator  that  the  purchaser  shoiald  be  exempt  from  the 
necessity  of  seeing  to  the  application  of  the  purchase-money:  Wil- 
liamson V.  Curtis,  3  Bro.  C.  C.  90;  Smith  v.  Guyon,  1  Bro.  C.  C. 
180,  and  Mr.  Belt's  note;  Balfour  v.  Welland,  10  Ves.  151;  Shaiv 
V.  Borrer,  1  Kee.  559;  Hardioicke  v.  Mynd,  1  Anst.  109;  Barker  v. 
Duke  of  Devon,  3  Mer.  310;  Jiobinson  v.  Loicater,  17  Beav.  592;  5 

153 


*  84  ELLIOT  V.  MERRYMAN. 

De  G.  Mac.  &  G.  272;  Dundas  v.  Blake,  11  Ir.  Eq.  Eep.  138,  156; 
Doivling  v.  Hudson,  17  Beav.  248;  Storrij  v.  iraZ.s/i,  18  Beav.  559; 
Glynn  v.  LocA;e,  3  Dru.  &  W.  11,  22;  Ford  v.  Rtjan,  4  Ir.  Ch.  Rep, 
342. 

The  rule  also  is  applicable  where  the  tnist  is  for  the  pay- 
[  *  84]  ment  of  a  jjarUciilay^  debt,  and  of  the  *  testator's  other  debts: 
Robinson  v.  Loivater,  17  Beav.*592;  5De.  G.  Mac.  &  C.  272. 
So,  also,  where  there  is  a  trust  or  charge  for  the  general  payment 
«f  debts,  as  well  as  for  the  payment  of  legacies,  the  purchaser  will 
not  be  obliged  to  see  to  the  application  of  the  purchase  money; 
[Dewey  v.  Buggies,  25  N.  J.  Eq.  35;  Sims.  v.  Lively,  14  B.  Mon. 
435,  Andrews  v.  Sparhawk,  13  Pick.  393,]  for,  as  Lord  Thurloiv  ob- 
served, in  Jebb  v.  Abbott  (cited  by  Mr.  Butler  in  his  note  on  Co.  Litt. 
290,  b),  he  cannot  be  expected  to  see  to  the  discharge  of  legacies, 
which  cannot  be  paid  till  after  the  debts.  See  als-o  Beynon  v.  Gol- 
lins,  cited  also  by  Mr.  Butler  in  the  same  note:  Rogers  y.  Stcilli- 
corne,  Amb.  188;  Walker  v.  Flamstead,  2  Ld.  Ken.  2nd  part,  57; 
Bowling  v.  Hudson,  17  Beav.   248. 

The  rule  is  also  applicable  where  there  is  a  devise  or  charge  for 
the  general  payment  of  debts  and  annuities.  See  Page  v.  Adam,  4 
Beav.  269;  there  a  testator  gave  his  real  and  personal  estate  to  A. 
subject  to  the  payment  of  his  debts  and  certain  annuities.  It  was 
argued,  upon  the  authority  of  a  dictum  in  the  principal  case,  that 
annuity  legacies  charged  upon  land  were  different  fi-om  other  lega- 
cies, inasmuch  as  it  was  intended  that  they  should  continue  a 
charge  upon  the  land.  However,  Lord  Langdalc,  M.  Jl.,  held  that 
A.  could  make  a  good  title  to  tha  real  estate  without  the  concur- 
rence of  the  annuitants,  and  that  a  purchaser  from  A.  was  not 
bound  to  see  to  the  application  of  the  purchase-money.  "When," 
observes  his  Lordship,  "an  annuity  is  charged  on  land,  and  there 
is  no  devise  for  the  payment  of  debts,  and  no  general  charge  of 
debts,  it  must  be  deemed  that  the  land  was  intended  to  be  a  constant 
and  subsisting  security  for  the  payment  of  the  annuity.  But  in  the 
case  of  Elliot  v.  Merryman,  where  an  expression  to  that  effect  is  used, 
it  was  not  considered,  and  the  case  did  not  require  it  to  be  consid- 
ered, whether,  in  a  case  in  which  both  debts  and  annuities  were 
charged,  the  lands  would  be  charged  with  the  annuities  in  the 
hands  of  a  purchaser  from  the  person  whose  duty  it  was  to  sell  for 
payment  of  debts;  and  the  opinion  of  Lord  Eldon,  as  stated  in  the 
note  to  Jenkins  v.  Hiles,  6  Ves.  654,  n.,  is,  'that  where  a  man  by 
deed  or  will  charges  or  orders  an  estate  to  be  sold  for  payment  of 
debts  generally,  and  then  makes  specific  dispositions,  the  purchaser 
is  not  bound  to  see  to  the  application  of  the  piu'chase  money.  It 
is  just  the  same  as  if  the  specific  bequests  were  out  of  the  will' 
Seeing  no  reason  to  differ  from  this  opinion,  and  conceiving  that  an 
annuity  legacy  charged  on  the  estate  is,  in  the  sense  hero  used,  a 
specific  disposition,  subject  to  the  payment  of  debts,  I  do  not  think 
that  the  rule  ought  to  be  departed  from  by  reason  of  the  nature  of 
154 


ELLIOT  V.  merry:\l\n.  *  86 

the  legacy,"     See  Johnfion  v.   Kcnnetf,   3   My.  &  K.  624; 
EInnd  V.  *  Eland,  1  Boa  v.  23-");  S.  C,  4  My.  &  Cr.  420.       [  *85  ] 

Where  there  is  a  trust  or  charge  for  payments  uf  debts  gen- 
erally and  legacies,  a  purchaser,  even  after  the  debts  have  beenxjaid, 
and  he  is  aware  of  their  having  been  paid,  will  not,  inasmuch  as  the 
rule  is  a[)plicable  to  the  state  of  things  at  the  death  of  the  testator, 
be  liable  to  see  to  the  application  of  the  purchase-money  in  pay- 
ment of  the  legacies.  See  Johnson  v.  Kennett,  3  My.  &  K.  G24. 
[The  purchaser  will  not  be  protected  if  he  had  any  notice  of  an  in- 
tention to  misap])]y  the  purchase  money:  Shaw  v.  Spencer,  100 
Mass.  388;  AVilliamson  r.  Morton,  2  Md.  Ch.  94;  Clyde  v.  Simpson, 
4  Ohio  St.  445.]  There  the  testator,  subject  to  his  debts  and  lega- 
cies, gave  all  his  real  and  personal  estate  to  his  son  absolutely,  and 
the  son  thus  became  trustee  for  payment  of  debts  and  legacies,  but 
subject  to  the  charge,  he  was  owner.  The  estate  was  then  settled 
by  the  son,  who  afterwards  sold  it.  Lord  Lyndhurst,  in  reversing 
the  decision  of  Sir  L.  Shadiv'ell,  V.-C,  observed,  that  it  was  said 
that  the  debts  having  been  paid,  and  paid  out  of  the  personal 
estate,  and  nothing  remaining  but  the  legacies,  the  case  fell  within 
the  general  rule  applicable  to  cases  where  legacies  alone  were 
charged  upon  the  real  estate.  He  found  no  aiithority  for  such  a 
jiroposition;  the  rule  applied  to  the  state  of  things  at  the  death  of 
the  testator;  and  if  the  debts  were  afterwards  paid,  and  the  lega- 
cies alone  left  as  a  charge,  that  circumstance  did  not  vary  the  gen- 
eral rule.  In  Eland  v.  Eland,  4  My.  &  Cr.  429,  Lord  Cottenham, 
speaking  of  the  rule,  as  laid  down  by  Lord  Lyndhurst,  says:  "I 
entirely  concur  in  that  opinion,  otherwise  the  mortgagee  must 
in  every  case  in  which  there  is  a  charge  of  legacies,  ascertain 
whether  the  debts  have  been  paid  or  not."  See  also  Page  v.  Adam, 
4  Beav.  2C)d. 

In  Forbes  v.  Peacock,  1  Ph.  717,  the  testator  charged  his  real  es- 
tate with  the  payment  of  his  debts,  and  directed  it  to  be  sold  (but 
without  saying  by  whom)  upon  the  death  of  his  wife,  who  was  ten- 
ant for  life,  if  not  sooner  disposed  of,  and  the  proceeds,  with  the 
residue  of  his  personal  estate,  to  be  divided  among  certain  of  his 
relations.  The  executors  being  thus  empowered  to  sell  the  real  es- 
tate, the  siirviving  executor  entered  into  a  contract  for  that  purpose 
with  the  defendant.  Soon  after  the  death  of  the  widow  (twenty- 
live  years  having  elapsed  since  the  testator's  death),  the  defendant, 
by  his  solicitor,  inquired  whether  there  were  any  debts  due  from 
the  estate  which  remained  unsatisfied;  and,  if  not,  whether  the 
cestuis  que  trust  would  give  authority  to  sell.  To  this  question  no 
answer  was  returned.  Sir  L.  Shadwell,  V.-C,  was  of  opinion  that 
this,  under  the  circumstances,  amounted  to  notice  to  the  purchaser 
that  the  debts  were  paid,  and  that  he  was  therefore  bound  to  see 
that  the  purchase-money  was  properly  applied.  See  12 
Sim.  528.  It  followed,  that  the  *  concurrence  of  the  cestuis  [  *  86  ] 
que  trust  was  necessary  to  enable  the  purchaser  to  make  a 

155 


*  87  ELLIOT  V.  MERRYMAN. 

good  title.  Lord  Lyndhurst  reversed  the  decision  of  the  Vice-Chan- 
cellor.  "  The  estate,"  said  his  Lordship,  "  being  charged  in  the  first 
instance  with  the  payment  of  debts,  the  defendant  was  not  bound,  ac- 
cording to  the  general  rule,  to  see  to  the  application  of  the  pur- 
chase-money  But  assuming  that  the  facts  relied  tipon 

in  tfiis  case  amount  to  notice  that  the  debts  had  been  paid,  yet,  as  the 
executor  had  authority  sell,  not  only  for  the  payment  of  debts,  but 
also  for  the  purpose  of  distribution  among  the  residuary  legatees, 
this  would  not  afford  any  inference  that  the  executor  was  commit- 
ting a  breach  of  trust  iu  selling  the  estate,  or  that  he  was  not  per- 
forming what  his  duty  required.  The  case,  then,  comes  to  this:  if 
authority  is  given  to  sell  for  the  payment  of  debts  and  legacies,  and 
the  purchaser  knows  that  the  debts  are  paid,  is  he  bound  to  see  to 
the  application  of  the  purchase- money  ?  I  apprehend  not.  In  the 
case  of  Johnsoyi  v.  Kennett,  where  it  was  contended  that  the  rule  did 
not  apply,  because  the  debts  had  been  paid  before  the  sale  took 
place,  I  held  that  the  rule  had  reference  to  the  death  of  the  testator; 
and,  therefore,  that  even  supposing  the  debts  were  paid  before  the 
sale  took  place,  and  that  the  legacies  alone  remained  as  a  charge, 
that  circumstance  would  not  vary  the  general  rule." 

In  a  note  by  the  learned  reporter  appended  to  Forbes  v.  Peacock 
(1  Ph.  722),  he  says:  "  If,  notwithstanding  this  decision,  it  should 
still  be  inferred  from  the  terms  of  the  dictum  in  Johnson  v.  Kennett 
(3  My.  &  K.  624),  that  the  rule  would  not  apply  to  a  case  in  which 
it  should  happen  that  there  were  no  debts  due  at  the  testator's 
death,  and  that  the  purchaser  knew  it,  I  have  the  authority  of  Lord 
Lyndhurst  for  stating  that  he  did  not  intend,  on  that  occasion,  to 
lay  down  any  rule  which  should  govern  such  a  case;  and  that  the 
guarded  and  somewhat  qualified  terms  in  which  the  dictum  is  re- 
ferred to  and  adopted  in  this  case,  were  used  for  the  express  pur- 
pose of  excluding  that  inference."     See  1  Ph.  722,  n. 

Lord  St.  Leonards,  however,  in  a  subsequent  case,  with  reference 
to  what  fell  from  Lord  Lyndhurst  in  Johnson  v.  Kennett  (3  My.  & 
K.  G29)  and.  Forbes  v.  Peacock  (1  Ph.  717),  and  the  note  of  the 
reporter,  makes  the  following  useful  observations :  "I  cannot  think 
that  a  satis'factory  settlement  of  this  important  point.  The  differ-' 
ence  is  this: — Lord  Lyndhurst  represents  the  Vice-Chancellor  as 
saying  that  if  there  be  a  general  charge  of  debts  and  legacies,  the 
purchaser  is  absolved  from  seeing  to  the  payment  of  the  legacies  on 
account  of  the  charge  of  debts,  but  if  the  charge  of  debts 
r*  87  ]  has  been  satisfied,  and  the  *  purchaser  knows  it  has  been 
satisfied,  he  is  then  in  the  same  situation  as  if  there  was  only 
an  original  charge  of  legacies,  and  he  is  bound  to  see  to  the  appli- 
cation of  the  purchase-money;  but  to  this  Lord  Lyndhurst  ansyxers, 
that  the  rule  is  different,  and  that  if  there  is  a  general  charge  of 
debts,  the  case  must  be  taken  as  it  stood  at  the  death  of  the  testa- 
tor, and  if  there  were  (iebts  then,  although  they  were  afterwards 
satisfied,  the  purchaser  is  not  liable.  Then  he  says,  as  I  under- 
156 


ELLIOT  V.  :merryman.  *  88 

stand  by  the  note,  that  ho  did  not  mean  to  decide  that  if  there  were 
no  debts  at  the  death  of  the  testator,  the  purchaser  was  not  bound. 
I  cannot,  however,  follow  that  distinction.  The  case  must  stand 
upon  one  of  two  grounds:  either  that  there  are  no  debts  within  the 
knowledge  of  the  purchaser  (and  then  it  is  indifferent  whether 
there  were  no  debts  at  the  death  of  the  testator  or  no  debts  at  the 
time  of  the  purchase)  or  (which  is  more  satisfactory  and  open  to  no 
ambiguity),  on  the  ground  that,  when  a  testator  by  his  will  charges 
his  estate  with  debts  and  legacies,  he  shows  that  he  means  to  en- 
trust his  trustees  with  the  power  of  receiving  the  money,  anticipat- 
ing that  there  will  be  debts,  and  thus  providing  for  the  payment  of 
of  them.  It  is  by  implication  a  declaration  by  the  testator  that  ho 
intends  to  entrust  the  trustees  with  the  receipt  and  application  of 
the  money,  and  not  to  throw  any  obligation  at  all  upon  the  pur- 
chaser or  mortgagee.  That  intention  does  not  cease  because  there 
are  no  debts;  it  remains  just  as  much  if  there  are  no  debts,  as  if 
there  are  debts,  because,  the  power  arises  from  the  circumstance 
that  the  debts  are  provided  for,  there  being  in  the  very  creation  of 
the  trust  a  clear  indication  amounting  to  a  declaration  by  the  tes- 
tator that  he  means,  and'  the  nature  of  the  trust  shows  that  he 
means,  that  the  trustees  are  alone  to  receive  the  money  and  apply 
it.  In  that  way  all  the  cases  are  reconcilable,  and  all  stand  upon 
one  footing,  viz.,  that  if  a  trust  be  created  for  the  payment  of  debts 
and  legacies  the  purchaser  or  mortgagee  shall  in  no  case  be  bound 
to  see  to  the  application  of  the  money  raised.  This  would  be  a  con- 
sistent rule,  on  which  everybody  would  be  able  to  act,  authorised, 
too,  by  the  words  of  the  testator,  and  drawing  none  of  those  fine 
distinctions  which  embarass  Courts  and  Counsel,  and  lead  to  liti- 
gation; and  it  is  one  to  which  I  shall  adhere  as  long  as  I  sit  in  this 
Court."  Stroicghill  v.  Aristey,  1  De  Gr.  Mac.  &  G.  652.  And  see 
Carlyon  v.  Truscott,  20  L.  R.  Eq.  348. 

"With  reference  to  the  ground  upon  which  Lord  Lyndhurst  decided 
the  case  of  Johnson  v.  Kennett,  Lord  St  Leonards  said  that  it  was 
not  altogether  satisfactory.  "The  son,"  said  his  Lordship, 
"being  absolute  owner  of  the  *  estate,  subject  to  the  debts  [  *  88  ] 
and  legacies,  was  at  liberty  to  settle  it  to  uses  for  himself 
just  as  he  thought  proper,  and  when  he  sold  he  sold  as  owner  as 
well  as  trustee,  and  a  sale  was  no  breach  of  trust;  it  was  a  sale  by 
him  in  his  proper  character,  but  still  subject  in  equity  to  the  pay- 
ment of  the  debts  and  legacies.  He  stood  in  the  same  situation  as 
an  heir-at-law,  who,  being  liable  to  the  testator's  debts,  has  power 
to  dispose  of  the  estate  by  sale,  if  he  thinks  proper,  but  is  bound 
to  apply  the  money  that  he  receives  from  the  sale  in  payment  and 
satisfaction  of  the  debts,  and  this  Court  will  compel  him  to  do  so, 
and  will  not  allow  him  to  divert  the  money  to  other  purposes."  See 
StroughiU  v.  Anstey,  1  De  G.  Mac.  &  G.  650. 

The  liability  to  debts  imposed  by  statute  upon  real  estates  of  de- 
ceased persons  has  not  the  same  operation  as  a  charge  of  debts  by 

157 


*  S9  ELLIOT  V.  MERRYMAN. 

such  persons,  and  a  purchaser  is  still  bound  to  see  to  the  applica- 
tion of  the  purchase-money  in  payment  of  legacies  charged  on  such 
estates  unaccompanied  by  a  general  charge  of  debts.  See  Horn  v. 
Horn,  2  S.  &  S.  448. 

[The  American  rule  is  much  less  strict  regarding  the  application 
of  the  purchase  money,  than  the  English:  Redheimer  v.  Pyron,  1 
Speer'sEq.  141;  Eutledge  v.  Smith,  1  Bush.  Eq.  283.] 

Where  a  trader  devised  his  estates,  subject  to  the  payment  of 
legacies,  it  was  contended,  that  as  the  real  estate  of  a  trader  was  by 
the  Debts  of  Traders  Act,  47  Geo.  3,  c.  74  (repealed,  and  the  pro- 
visions thereof  enlarged  by  1  Will.  4,  c.  47),  subject  to  debts  gen- 
erally, the  purchaser  was  discharged  from  the  obligation  to  see  that 
his  money  was  applied  in  payment  of  the  legacies,  as  he  would  have 
been  if  the  estate  had  been  charged  by  the  testator  with  payment 
of  his  debts.  However,  Sir  J.  Leach,  V.-C,  held,  that  the  statute 
made  no  difference  in  this  respect.  The  principle  of  this  decision 
applies  to  Lord  Romilly's  Act  (3  &  4  Will.  4,  c.  ,104),  which  makes 
the  real  estates  of  all  persons,  who  die  after  the  29th  of  August, 
1833,  liable  to  simple  contract  debts.  See  Shaiv  v.  Borrer,  1  Kee, 
566,  577;  Ball  v.  Harris,  4  My.  &  Cr.  268;  Jones  v.  Noyes,  4  Jur. 
N.  S.  1033. 

Where  a  testator  charges  his  land  with  the  payment  of  his  debts 
and  devises  it  to  trustees  upon  trust  for  others,  the  purchaser  is  not 
bound  to  see  to  the  application  of  his  purchase-money;  for,  as  be- 
fore observed,  the  charge  is  equivalent  to  a  trust,  and  the  same 
effect  will  be  given  to  it  by  a  Court  of  equity  as  if  a  direct  devise 
had  been  made  to  trustees  for  payment  of  debts.  Whether  the  ex- 
ecutor alone  can  in  such  cases  sell  will  be  hereafter  discussed;  it  is, 
however,  clear  that  the  devisee  in  trust  and  the  executor  between 
them,  or  a  person  in  which  those  two  characters  are  combined,  may 
sell  and  make  a  good  title  to  the  estate.  In  Shaw  v.  Borrer,  1  Kee, 
559,  a  testator,  after  commencing  his  will  with  words  amount- 
[  *  89  ]  ing  to  a  charge  of  his  real  estate  with  payment  *of  his  debts, 
devised  an  advowson  to  trustees,  upon  trust  to  present  his 
youngest  son  to  the  living  when  vacant,  and  subject  thereto,  in  trust 
to  sell  and  apply  the  produce  of  the  sale  for  the  special  purposes 
therein  mentioned;  and  he  devised  his  residuary  real  estate,  upon 
certain  trusts,  to  other  trustees  and  appointed  three  executors  (who 
proved  his  will),  one  of  whom  was  his  youugest  son,  and  another, 
one  of  the  trustees  of  the  adowson.  The  personal  estate  being  in- 
sufficient for  the  payment  of  debts,  the  trustees  of  the  advowson, 
one  of  whom  was  an  executor,  at  the  instance  of  the  other  executors, 
contracted  to  sell  the  adowson,  before  any  vacancy  had  occurred  in 
the  living.  In  a  suit  for  specific  performance  by  the  plaintiffs,  the 
trustees  of  the  advowson,  and  the  executors,  against  the  purchaser, 
it  was  held  by  Lord  Langdale,  M.  R.,  that,  the  charge  being  in 
effect  a  devise  of  the  real  estate  in  trust  for  the  payment  of  debts, 
a  good  title  could  be  made  by  the  plaintiff's,  without  the  institution 
158 


ELLIOT  V.  MERRYMAN.  *  00 

of  a  suit  to  ascertain  the  deficiency  of  the  personal  estate,  and  tliat 
the  purchaser  was  not  bound  either  to  irK[uire  whether  other  suffi- 
cient property  ought  first  be  applied  in  payment  of  debts,  or  to  see 
to  the  application  of  the  purchase  money.  "It  seems  clear,"  said 
his  Lordship,  "that  a  charge  of  this  nature  has  been  and  ought  to 
be  treated  as  a  trust,  which  gives  the  creditors  a  priority  over  the 
special  purposes  of  the  devise;  and  no  doubt  is  raised  but  that,  on 
the  ai)j)licationof  the  creditors,  the  Court  would,  in  a  suit  to  which 
the  executors  were  parties,  compel  the  trustees,  for  special  purposes, 
to  raise  the  money  requisite  for  payment  of  the  debts.  If  so,  is 
there  any  good  reason  to  doubt,  but  that  the  trustees  and  executors 
may  themselves  do  that  which  the  Court  would  compel  them  to  do 
on  the  application  of  the  creditors  ?  " 

Such  charge  of  debts  will  also  authorise  a  mortgage  of  the  estates 
upon  which  they  are  charged.  See  Ball  v.  HaiTis,  4  My.  &  Cr.  264. 
There  Lord  Cottenham,  approving  of  the  decision  in  Shaw  v.  Borrer, 
1  Kee.  559,  held,  that  a  charge  by  will  of  real  estates  with  the  pay- 
ment of  debts,  generally,  authorised  a  trustee,  who  teas  also  executor, 
to  w^hom,  after  imposing  that  charge,  the  testator  had  devised  the 
estate,  upon  trusts  for  other  persons,  to  make  a  mortgage  (being  a 
conditional  sale)  of  lands  purchased  under  a  power  and  conveyed  to 
him  upon  the  trusts  of  the  will,  and  exempted  the  mortgagee  from 
liability  to  see  to  the  application  of  the  mortgage  money.  See  also 
Walkers.  Smallivood,  Amb.  676;  Jenkins  \\  Hiles,  6  Ves.  654,  note; 
Bailey  v.  Ekins,  7  Ves.  323;  Doltony.  Hewen,  6  Madd.  9;  Johnson 
V.  Kennett,  3  My.  &  K.  624;  Eland  v.  Eland,  1  Beav.  235; 
4  My.  &  Cr.  430;  Page  v.  Adam,  4  Beav.  *  269;  Forbes  v.  [  *  90  ] 
Peacock,  1  Ph.  717. 

And  where  a  direction  to  executors  to  pay  debts  is  followed  by 
a  devise  of  real  estate  to  the  executors,  either  as  such  or  in  their 
own  names,  and  they  take  the  legal  estate,  and  whether  they  take 
the  beneficial  interest  for  themselves  or  in  trust  for  others,  they  have 
a  power  to  sell  for  payment  of  debts,  and  convey  the  legal  estate, 
and  ordinarily  a  purchaser  is  not  bound  to  inquire  as  to  whether  the 
debts  or  legacies  have  been  paid:  In  re  Tanqueray-Willaume  and 
Landau,  20  Ch.  D.  465,  479. 

A  purchaser  is  not  bound  to  ascertain  how  much  land  it  is 
necessary  to  sell  for  payment  of  debts,  for,  as  observed  by  the  Lord 
Keeper  in  Spalding  v.  Shalmer,  1  Vern.  303,  "if  more  be  sold  than 
is  sufficient  to  pay  the  debts,  that  shall  not  turn  to  the  prejudice  of 
the  purchaser,  for  he  is  not  obliged  to  enter  into  the  account;  and 
the  trustees  cannot  sell  just  so  much  as  is  sufficient  to  pay  the 
debts."     See  also  Thomas  v.  Toicnsend,  16  Jnr.  736. 

Where,  moreover,  lands  are  devised  to  trustees  upon  trust  to 
raise  so  much  money  as  the  personal  estate  shall  fall  dejicient  in 
paying  the  testator's  debts  and  legacies,  the  purchaser  is  not  bound 
to  inquire  whether  the  real  estate  is  wanted  or  not.  Secus  if  the 
trustees  have  a  jjoicer  merely  to  raise  money  upon  the  deficiency  of 

159 


*  91  ELLIOT  V.  MERRYMAN. 

the  personal  estate,  for  unless  there  was  a  deficiency  the  power  never 
arose,  and  consequently  the  purchaser  would  take  no  estate  by  the 
supposed  execution  of  it.  See  Culpepjier  v.  Aston,  2  Ch.  C.  115, 
223;  Dike  v.  Ricks,  Cro.  Car.  335;  Pierce  v.  Scott,  1  Y.  &  C.  Exch. 
Ca.  257;  Butler's  note  to  Co.  Litt.  290,  b.;  Bird  v.  Fox,  11  Hare, 
40.  [If  it'  appears  to  the  purchaser  that  he  is  baying  trust  property, 
he  will  be  put  upon  no  inquiry,  except  to  ascertain  whether  the 
trustee  has  power  to  change  or  vary  the  securities:  Perry  on 
Trusts,  sec.  814] 

In  a  case  where  a  testator,  "in  case  his  personal  estate  should  be 
insufficient  for  the  payment  of  his  debts,"  charged  them  upon  his 
real  estate;  it  was  held  by  Lord  Romilly,  M.  E.,  that  the  executor 
had  an  implied  power  to  sell  and  give  valid  receipts  for  the  pur- 
chase-money, without  showing  the  insufficiency  of  the  personal  estate 
although  thirteen  years  had  elapsed  since  the  testator's  death:  Gree- 
thaiii  V.  CoUon,  34  Beav.  615. 

Where  a  trustee  for  the  sale  of  real  estate,  with  power  to  give 
receipts  and  being  entitled  beneficially  to  a  share  of  the  proceeds  of 
the  sale,  has  judgments  registered  against  him;  it  seems  that  a 
purchaser,  with  notice  of  the  judgments,  may  be  bound  to  see  to  the 
application  of  the  purchase-money  in  payment  of  the  judgments. 
See  Drummond  v.  Tracy,  Johns.  610. 

"Where,  however,  a  testator  gave  all  his  real  and  personal  estate 
to  his  daughter  upon  trusts  for  sale  and  conversion,  and  to  hold 
the  proceeds  for  herself  and  two  others  equally  with  the 
[  *  91  ]  usual  receipt  *  clause,  and  appointed  her  executrix;  it  was 
held  by  ^\rW.  Page-Wood,  V.-C,  that  the  daughter  having 
married  and  afterwards  sold  the  land,  could,  with  her  husband's 
concurrence,  effectually  discharge  the  purchaser,  notwithstanding 
judgments  registered  against  the  husband  between  the  date  of  the 
sale  and  the  completion:  Drummond  v.  Tracy,  Johns.  608. 

The  rule,  that  a  purchaser  is  not  bound,  where  the  debts  are 
charged  generally,  to  see  to  the  application  of  the  purchase-money, 
"  is,'^  as  observed  by  Lord  Cottenham,  "  subject  to  this  obvious  ex- 
ception: that,  if  a  purchaser  or  mortgagee  is  a  party  to  a  breach  of 
trust,  it  can  afford  him  no  protection.  One  obvious  example  is 
where  a  devisee  "has  a  right  to  sell,  but  he  sells  to  pay  his  own  debt, 
which  is  a  manifest  breach  of  trust,  and  the  party  who^  concurs  in 
the  sale  is  aware  or  has  notice  of  the  fact  that  such  is  its  object": 
Eland  v.  Eland.  4  My.  &  Cr.  427.  See  also  Rogers  v.  Skillicorne, 
Ambr.  189;  Wafkins  \.  Cheek,  2  S.  &  S.  199;  Burt  \.  Trueman,Q 
Jur.  N.  S.  721 ;  8  W.  E.  (V.-C.  K.)  035;  Hoivard  v.  Chaffer,  2  Drew. 
&  Sm.  236;  Stroughill  v.  Anstey,  1  De  G.  Mac.  &  G.  648;  Colyer  v. 
Finch,  5  Ho.  Lo.  Ca.  923.  [If  it  appears  to  the  purchaser  in  any 
way,  that  the  sale  which  is  made  is  a  breach  of  trust,  or  is  made  for 
the^  purpose  of  misapplying  the  money,  or  to  secure  a  private  debt 
of  the  trustee,  the  purchaser  will  be  liable  to  the  cestui  que  trust: 
Ashton  V.  Atlantic  Bank,  3  Allen,  219;  Leitch  v.  Wells,  48  Barb.  637; 
160 


ELLIOT  V.  MERRYMAN.  ,  *  5^2 

Bingham  v.  Stewart,  13  Minn.  106;  Sturtovant  v.  Jaquos,  14  Allen, 
528.] 

Another  example  is  where  the  power  to  sell  the  real  estate  is  only 
in  case  of  a  deficiency  of  the  personal  estate,  and  the  purchaser 
has  notice  that  the  personal  estate  is  ample  and  that  the  debts  have 
been  paid;  for  inasmuch  as  he  has  then  notice  that  what  is  intend- 
ed to  be  done  is  a  breach  of  trust,  he  would  therefore  by  becoming 
a  purchaser  concur  in  such  breach  of  tntst,  and  thereby  become  re- 
sponsible: Carlyon  v.  Truscott,  20  L.  K.  Eq.  351.  This  case  is  dis- 
tinguishable from  that  of  Forbes  v.  Peacock  (1  Fh.  717),  ante,  p.  85, 
as  what  Lord  Lyndhurst  there  held  was,  that  where  there  was  a 
power  to  sell  for  payment  of  debts  and  legacies,  then  inasmuch  as, 
if  the  property  was  sold  for  payment  of  debts,  there  was  under  the 
general  rule  an  undoubted  power  to  give  receipts;  the  combining 
of  legacies  with  debts  implied  also  a  power  to  give  receipts  even  if 
the  debts  were  paid. 

The  burthen  of  proving  that  a  mortgagee  or  purchaser  had  such 
notice  lies  upon  a  creditor  of  the  testator  who  impeaches  the  valid- 
ity of  the  mortgage  or  purchase:  Corser  v.  Carticright,  8  L.  R.  Ch. 
App.  97;  7  L.  II.  Ho.  Lo.  731 ;  Oram  v.  Richardson,  W.  N.,  27  Jan., 
1877,  p.  13. 

Mere  absence  of  statement  of  the  purpose  for  which  the  money 
obtained  by  the  sale  or  mortgage  is  to  be  used,  will  not  make  the 
purchaser  or  mortgagee  liable,  on  the  ground  of  a  presumed  knowl- 
edge that  the  money  was  to  be  applied  otherwise  than  for  the  pay- 
ment of  the  testator's  debts.      {lb.) 

*  And  the  fact  that  an  executor,  who  is  also  devisee,  has  [  *  92  ] 
mortgaged  his  private  property  together  with  the  prop- 
erty devised  to  him  charged  with  payment  of  debts,  will  not  raise  a 
presumotion  against  him  that  he  was  not  acting  in  the  ordinary 
discharge  of  his  duty  as  executor:  Barrov  v.  Griffith,  13  W.  R.  (V.- 
C.  S.)41;  11  Jur.  N.  S.  6. 

Where  however  trustees,  instead  of  selling  under  a  potcer  in  a 
will,  raise  money  by  mortgage  in  a  manner  not  authorised  by  the 
power,  many  years  after  the  death  of  the  testator,  the  mortgagee 
being  party  to  a  breach  of  trust,  his  security  will  be  invalid.  [See 
Duncan  v.  Jandon,  15  Wallace,  115;  Bayard  v.  Farmers  &  Mechan- 
ics' Bank,  52  Pa.  St.  222;  Baker  v.  Bliss,  39  N.  Y.  70.]  Thus,  in 
Stroughill  v.  Anstey,  1  De  G.  Mac.  &  G.  635,  where  a  testator  by  his 
will,  after  appointing  three  persons  his  executors,  gave  to  them  the 
residue  of  his  personal  estate,  and  directed  them,  or  the  other  trus- 
tees to  be  appointed  under  the  provisions  contained  in  his  will,  to 
stand  possessed  of  his  residuary  personal  estate,  upon  trust  at  such 
time  or  times  as  to  them  should  seem  meet,  to  sell  and  convert  into 
money  all  such  part  thereof  as  should  not  consist  of  money,  and 
invest  the  produce  in  securities,  and  to  stand  possessed  of  the 
same,  upon  trust  thereout  to  pay  his  funeral  expenses  and  debts, 
and  certain  large  legacies  which  he  specified,  and  to  stand  possess- 

11    WHITE   ON    EQUITY.  161 


*  93  .  ELLIOT  V.  MERRTMAN. 

ed  of  the  residue  for  his  two  sons  equally;  and  the  will  contained  a 
clause  which,  according  to  the  consiruction  put  upon  it  by  the 
Court,  empowered  the  trustees  to  give  receipts.  Sixteen  year?,  after 
the  death  of  the  testator,  the  then  acting  trustees  of  the  will,  who 
were  not  the  executors,  raised  money  iqjon  a  deposit  of  the  title- 
deeds  of  two  leasehold  houses,  part  of  the  testator's  residuary  es- 
tate. It  was  held  by  Lord  St.  Leonards,  C,  dismissing  a  claim  fil- 
ed by  the  mortgagees  to  enforce  their  securities,  that  inasmuch  as 
the  trusts  of  the  will  showed  a  conversion,  out  and  out,  of  t-lie  tes- 
tator's property,  to  be  absolutely  necessary,  the  trustees  were  not 
authorised  in  raising  money  by  mortgage.  In  giving  judgment, 
his  Lordship  made  the  following  important  observations  upon  the 
subject,  whether  a  power  of  sale  authorises  a  mortgage:  "  The  first 
question,"  said  his  Lordship,  "  is,  whether  a  mortgage  was  or  was 
not  authorised  by  the  trusts  of  this  will.  'And  in  addressing  my- 
self to  this  point,  it  ought,  I  think,  to  be  considered,  that  in  a  case 
where  trustees  have  a  legal  estate,  and  are  to  perform  a  particular 
trust  through  the  medium  of  a  sale,  although  a  direction  for  a  sale 
does  not  properly  authorise  a  mortgage,  yet  where  the  circumstan- 
ces would  justify  the  raising  of  the  particular  charge  by  a  mort- 
gage, it  must  be  in  some  measure  in  the  discretion  of  the  Court 

whether  it  will  sanction  that  particular  mode  or  not.     It 
[  *  93  ]  may  be  *  the  saving  of  an   estate,  and   the  most  discreet 

thing  that  can  be  done;  and  as  the  legal  estate  would  go, 
and  as  the  purposes  of  the  trust  would  be  satisfied,  I  think  it  im- 
possible for  the  Court  to  lay  down,  that  in  evei-y  case  of  a  trust  for 
sale  to  raise  particular  sums,  a  mortgage  might  not,  under  circum- 
stances, be  justified.  As  a  general  rule,  however,  there  can  be  no 
difficulty  in  saying,  that  a  mortgage  under  a  mere  trust  for  conver- 
sion, out  and  out,  is  not  a  due  execution  of  that  trust;  and  looking 
at  the  nature  of  the  property  in  the  present  case,  which  was  lease- 
hold, and  which,  as  being  varying  property,  would,  as  a  matter  of 
course,  be  directed  to  be  converted  into  money,  where,  under  a  gen- 
eral gift,  it  was  to  go  to  different  parties,  having  different  interests, 
it  is  impossible  to  say  that  this  Court  could  allow  the  property  to 
remain  unconverted  under  an  absolute  trust  for  conversion  out  and 
out;  and  the  trustees  to  deal  with  it,  as  if  it  were  property  that  was 
to  be  enjoyed  in  specie.  In  the  present  instance,  the  trustees  went 
on,  receiving  the  rents,  and  accounting  to  the  persons  who  were  en- 
titled to  the  benefit  of  the  purchase-money  of  the  property  produc- 
ing the  rents;  and  this  was  done  where  the  will  contained  a  trust 
that,  with  all  convenient  speed  after  the  testator's  death,  the  prop- 
erty should  be  converted  out  and  out,  not  simply  for  the  purpose 
of  paying  a  charge,  which  might  be  more  conveniently  raised  by  a 
mortgage,  but  for  the  purpose  of  conversion.  One  of  the  objects  of 
conversion  was  to  pay  debts;  but  there  were  other  and  final  objects 
which  rendered  a  conversion  out  and  out  absolutely  necessary; 
namely,  the  dedication  of  the  trust  monies  to  raise  particitlar  sums 
162 


ELLIOT  V.  MERRY  MAN.  *  04 

according  to  the  testator's  will;  and,  therefore,  to  continue  ihe  pro- 
perty unconverted  was  to  set  aside  the  testator's  will  instead  of  ex- 
ecuting the  trusts  of  it;  and  if  the  trusts  had  been  properly  exe- 
cuted, the  fraud  which  has  been  perpetrated  could  not  have  taken 
place."  See  also  M'Neillie  v.  Acton,  4  De  G.  Mac.  &  G.'744;  Hal- 
denhy  v.  Spofforth,  1  Beav.  390;  Raikes  v.  Hall,  cited  1  De^G.  Mac. 
&  G.  646;  Mather  v.  Norton,  16  Jur.  809;  21.L.  J.  Ch.  15;  Vevaynes 
v.  Nohle,  2 1  Beav.  87 ;  Colijer  v.  Finch,  5  Ho.  Lo.  Ca.  923. 

With  reference  to  the  distance  of  time  that  had  elapsed  from  the 
death  of  the  testator  to  the  deposit  of  the  deeds,  his  Lordship  ob- 
served, "  That  people  who  deal  with  trustees  raising  ruoney  at  a  con- 
siderable distance  of  time,  and  without  any  apparent  reason  for  so 
doing,  must  be  considered  as  under  some  obligation  to  inquire,  and 
look  fairly  at  what  they  are  about.  I  do  not  mean  to  encumber  or 
to  lessen  the  security  of  purchasers  or  mortgagees  under  trusts;  but 
if  for  a  great  number  of  years  a  trust,  such  as  that  here, 
*  remains  unperformed,  and  parties  are  found  in  possession  [  *  94  ] 
and  receipt  of  the  rents  of  the  trust  property,  and  then  an 
application  is  made  of  it  without  their  concurrence  by  the  trustees, 
it  may  place  those  who  deal  with  the  trustees  in  a  situation  of  hav- 
ing it  established  that  there  was  a  breach  of  trust,  of  which  they 
ought  to  have  taken  notice:"  Stroughill  v.  Anstey,  1  De  G.  Mac.  & 
G.  654.  See  and  consider  Charlton  v.  Earl  of  Durham,  4  L.  R. 
Ch.  App.  433. 

The  question  as  to  what  period  of  time  is  sufficient  to  raise  a  pre- 
sumption that  debts  have  been  paid,  so  as  to  make  it  the  duty  of  a 
purchaser  to  make  inquiries,  has,  after  some  conflict  of  judicial  opin- 
ion {Sabin  v.  Heape,  27  Beav.  553;  Forbes  v.  Peacock,  12  Sim.  528), 
been  settled  at  the  period  of  twenty  years  from  the  death  of  the  tes- 
tator. "  I  think,"  said  Jessel,  M.  R.,  it  is  desirable  that  a  rule  should 
be  laid  down  upon  which  parties  may  act  without  coming  to  a  Court 
of  equity  and  in  my  opinion  the  reasonable  period  is  twenty  years. 
The  reason  why  I  say  twenty  years  is  this:  that  is  the  period  of  lim- 
itation for  a  specialty  debt,  and  we  know  as  a  fact  that  most  land- 
owners owe  mortgage  debts.  It  therefore  seems  reasonable  to  say 
that  after  the  lapse  of  twenty  years,  which  is  sufficient  to  bar  mort- 
gage debts  and  all  other  specialty  debts,  there  is  a  presumption  that 
the  debts  are  paid,  especially  when  you  tind  a  beneficiary  in  the  en- 
joyment of  the  estate — a  circumstance  mentioned  by  Lord  St.  Leon- 
ards in  Stroughill  v.  Anstey  (1  De  G.  Mac.  &  G.  654).  .  .  .  "Where 
you  find  a  beneficiary  in  possession,  and  twenty  years  have  elapsed, 
I  think  it  is  fair  to  presume  that  the  debts  have  been  paid,  and  in 
such  a  case  I  think  that  a  purchaser  is  bound  to  inquire:"  In  re 
Tanqueray-WiUaume  and  Landau,  20  Ch.  D.  480;  in  which  case,  as 
ten  years  and  a  half  only  had  elapsed,  it  was  held  that  presumption 
of  payment  of  the  debts  did  not  arise,  and  that  therefore  the  pur- 
chaser not  being  bound  to  make  any  inquiries  as  to  their  payment, 

1G3 


*  95  ELLIOT  V.  MERRYMAN. 

a  good  title  might  be  made  by  the  executors,  who  were  also  owners 
of  the  real  property  charged  with  payment  of  debts. 

But  a  mortgagee  in  such  cases  will  be  entitled  to  stand  as  a  cred- 
itor on  the  produce  of  the  estates,  to  the  extent  to  which  the  mort- 
gage money  has  been  promptly  applied:  Devaynes  v.  Robinson,  24 
Beav.  86. 

Another  exception  is,  where  the  purchaser  has  notice  of  a  suit  hav- 
ing been  instituted,  which  takes  the  administration  of  the  estate  out 
of  the  hands  of  the  trustee:  Lloyd  v.  Baldwin,  1  Ves.  173;  Walker 
V.  Sinalwood,  Amb.  676. 

It  may  be  here  mentioned,  that  a  question  may  arise  of  this  nature: 
assuming  that  trustees  for  sale  have  no  power  to  give  receipts, 
[*95]  *can  they,  by  conditions  of  sale,  compel  a  purchaser  to  be 
satisfied  with  their  receipts  alone?  It  seems  that  they  can 
(Groom  v.  Booth,  1  Drew.  548),  unless  the  conditions  are  framed  so 
as  to  mislead  the  purchaser  (lb.  p.  565);  or  the  Court  would,  by  en- 
forcing specific  performance,  cause  a  breach  of  trust  (lb.);  at  all 
events,  it  has  been  held  too  late  to  take  an  objection  to  such  a  con- 
dition on  exceptions,  after  a  decree  for  specific  performance,  and  the 
usual  reference  as  to  title:   Wilkinson  v.  Hartley,  15  Beav.  183. 

The  difficulty  arising  from  the  absence  of  a  receipt  clause  has 
sometimes  been  got  rid  of  by  proceedings  under  the  Leases  and 
Sales  of  Settled  Estates  Act  (19  &  20  Vict.  c.  120;  Carlyon  v.  Trus- 
cott,  20  L.  R.  Eq.  352),  and  sometimes  bv  payment  of  money  into 
Court  under  the  Trustee  Relief  Acts  (10  &  if  Vict.  c.  96;  12  &  13 
Vict.  c.  74),  (see  Cox  v.  Cox,  1  K.  &  J.  251);  but  the  application  of 
this  relief  to  the  cases  under  consideration  under  the  last-men- 
tioned Acts  is  doubtful;  and  it  has  been  decided  that  the  purchaser 
of  an  estate  subject  to  a  pecuniary  charge  cannot  avail  himself  of 
those  Acts:  In  re  Buckley's  Trust,  17  Beav.  110. 

2.  Whether  Charges  of  Debts,  Legacies,  or  other  specific  Sums  on 
Real  Estate  give  j^oiver  to  the  Exectdors  or  Devisees  to  Sell.^^ — The 
question  has  been  much  discussed  by  the  decisions  of  the  Court, 
previous  to  legislative  enactments,  w^hich  will  be  afterwards  noticed, 
whether  a  general  charge  of  debts  upon  real  estate  authorises  a  sale 
by  the  executors.  It  is  laid  down  broadly  by  Sir  L.  Shadwell,Y.  C, 
in  Forbes  v.  Peacock,  (12  Sim.  541;  overruled  upon  another  point, 
1  Ph.  717),  that  "if  a  testator  charges  his  real  estate  with  payment 
of  his  debts,  that,  primd  facie,  gives  his  executor  power  to  sell  the 
estate,  and  to  give  a  good  discharge  for  the  purchase-money." 

If  the  learned  Vice  Chancellor  meant,  that  such  a  charge  gave  a 
legal  power  to  the  executors  to  sell,  the  subsequent  authorities 
render  it  necessary  that  his  proposition  should  to  some  extent  be 
modified. 

The  first  case  which  it  is  important  to  notice  is  that  of  Shaw  v. 
Borrer,  1  Keen,  559,  ante,  p.  88.  There,  in  a  will  containing  a 
general  direction  to  pay  debts,  so  expressed  as  to  constitute  a  charge 
164 


ELLIOT  V.  MERRYMAN.  *  OG 

on  all  the  testator's  real  estates,  followed  by  a  devise  of  a  particular 
portion  of  the  real  estate  to  trustees  for  a  special  purpose,  aud  a 
residuary  devise  of  real  estates  for  other  special  purposes,  no  suit 
had  been  instituted  in  equity  to  ascertain  the  deficiency  of  the  per- 
sonal estate  to  pay  the  debts;  and  the  question  was,  whether  the 
trustees  and  executors  together  could  make  a  title  to  the  pur- 
chaser of  that  part  of  the  real  estate  which  was  devised  to 
*  trustees  for  special  purposes.  It  was  argued,  that  such  a  [  *  96  ] 
sale  could  only  be  effected  under  the  decree  of  a  Court  of 
equity  for  the  administration  of  the  testator's  estate;  but  Lord 
Langdale,  M.  K,  held  that  a  good  title  could  be  made.  "It  seems 
to  be  clear,"  said  his  Lordship,  "that  a  charge  of  this  nature  has 
been,  and  ought  to  be,  treated  as  a  trust,  which  gives  the  creditors 
a  priority  over  the  special  purposes  of  the  devise;  and  no  doubt  is 
raised  but  that,  on  the  application  of  the  creditors,  the  Court  would, 
in  a  suit  to  which  the  executors  were  parties,  compel  the  trustees, 
for  special  purposes,  to  raise  the  money  requisite  for  the  payment 
of  the  debts.  If  so,  is  there  any  good  reason  to  doubt  but  that  the 
trustees  and  executors  may  themselves  do  that  which  the  Court 
would  compel  them  to  do  on  the  application  of  the  creditors  ? 

Shmv  V.  Borrer  was  approved  of  by  Lord  Cotfenham  in  the 
case  of  Ball  v.  Harris  (4  My.  &  Cr.  264),  where  he  held  that  an 
executor  who  was  also  trustee  of  the  real  estate  for  other  persons, 
there  being  a  general  charge  of  debts,  had  power  to  sell  or  mort- 
gage the  estate.     [Perry  on  Trusts,  Sec.  802-805.] 

Now,  in  the  first  of  these  cases,  it  will  be  observed  that  the  trus- 
tees joined  with  the  executors  in  the  sale;  and,  in  the  second,  that 
the  executor  was  also  trustee,  so  that,  as  no  difficulty  arose  with 
respect  to  the  conveyance  of  the  legal  estate,  a  good  title  could  be 
made;  in  the  first  case,  by  the  trustees  and  executors;  and  in  the 
second  case,  by  the  executor,  acting  in  a  double  capacity  alone. 

In  a  subsequent  case,  on  a  bill  for  specific  performance,  it  was 
held  that  where  there  was  a  general  charge  of  debts  the  executor 
had  a  power  to  sell;  but  the  question  whether  the  power  of  sale 
was  legal,  so  as  to  preclude  the  necessity  of  the  party  in  whom  the 
legal  estate  was  vested  (in  that  case  the  heir-at-law)  from  joining 
in  the  conveyance,  was  left  undecided.  See  Gosling  v.  Carter,  1 
Coll.  644.  There  the  testator,  after  giving  a  general  direction  for 
payment  of  his  debts,  gave  and  bequeathed  all  his  real  and  personal 
estate  to  his  wife  for  life,  with  a  direction  to  sell  the  same,  and 
divide  the  proceeds  after  her  decease;  and  he  made  his  wife  and  an- 
other person  executrix  and  executor.  The  executrix  and  executor 
sold  the  real  estate  by  auction;  and  upon  a  bill  filed  by  them  against 
the  purchaser,  it  was  held  by  Sir  J.  L.  Knight-Bruce,  Y.-C,  that 
they  had  an  implied  power  to  sell  the  estate  for  payment  of  debts, 
but  that  the  dependent  ought  not  to  be  compelled  to  complete  the 
purchase  without  a  conveyance  from  the  heir-at-law.  "There  is," 
said  his  Honor,  "an  implied  power  of  sale,  because  the  life  interest 

165 


*  98  ELLIOT  V.  MERRYMAN. 

of  the  wife  is  subject  to  the  general  charge  for  payment  of 
[  *  97  ]  debts;  therefore,  *in  a  sense,  and  in  a  manner,  there  does 

exist  a  power  of  selling  during  the  lifetime  of  the  wife, 
there  being  debts,  which  fact  is  proved.  And  I  am  of  opinion,  that 
there  is  upon  this  will  an  intention  exhibited,  that  a  sale,  if  made, 
should  be  made  by  the  executors,  or  one  of  them,  and  not  other- 
wise. The  next  question  is,  whether  this  intention  is  expressed  so 
as  to  create  a  legal  power?  in  which  case,  the  concurrence  of  the 
heir-at-law  would  not  be  necessary.  I  am  of  opinion  this  ques- 
tion is  one  of  too  great  nicety  and  difficulty  to  decide  against  the 
purchaser.  If  he  wishes  the  conciu-rence  of  the  heir  he  must  pay, 
or  not  pay,  for  the  discovery  of  the  heir,  according  to  his  contract. 
Upon  that  I  give  no  opinion.  But  I  think  that  in  this  suit  he  is 
not  to  be  compelled  to  take  the  title  from  the  executor  and  execu- 
trix without  the  concurrence  of  the  heir.  I  decide,  therefore,  with- 
out prejudice  to  the  question,  whether  the  heir  is,  or  is  not,  a  neces- 
sary party  to  the  conveyance,  that  the  executor  and  executrix,  as 
debts  are  admitted  to  have  existed  at  the  time  of  the  sale,  had  power 
to  sell."     And  see  Curtis  v.  Fulbrook,  8  Hare,  25,  278. 

The  question  was  next  considered  at  law  in  the  case  of  Doe  d. 
Jones  V.  Hughes,  G  Exch.  223;  there  a  testator,  after  charging  all 
his  real  and  personal  estate  with  his  debts,  funeral  and  testamentary 
expenses,  and  a  legacy  therein  mentioned,  subject  thereto,  gave  and 
devised  the  rents  and  profits  of  all  his  messuages,  farms,  and  lands, 
except  his  Bala  Houses,  to  his  wife  for  life,  with  remainder  over  to 
another  person  in  fee.  And  he  also  bequeathed  to  his  wife  the  whole 
of  his  personal  estates,  and  appointed  her  sole  executrix.  It  was 
held  by  the  Court  of  Exchequer  that  the  executrix  had  no  implied 
power  to  sell  or  mortgage  the  Bala  Houses  (which  clescended  to  the 
heir)  for  the  payment  either  of  the  debts  or  of  the  funeral  or  tes- 
tamentary expenses  or  legacy.  "Upon  the  argument  of  this  case," 
said  Parke,  B. ,  "the  several  authorities  upon  the  subject  were  brought 
before  us;  and  it  was  contended  on  behalf  of  the  defendant,  that  the 
efPect  of  a  charge  of  the  real  estates  with  debts  was  to  give  to  the 
executrix  an  implied  power  of  sale.  But  upon  a  due  consideration 
of  all  the  cases,  it  is  perfectly  clear  that  not  one  of  them  bears  out 
that  proposition.  One  class  of  cases  shows,  that  by  a  devise  to 
trustees  of  the  real  estate  charged  with  the  testator's  debts,  the 
trustees  have  thereby  imposed  upon  them  the  duty  of  raising  money 
to  pay  those  debts;  for,  as  the  estate  is  given  to  them,  they  can, 
through  the  means  of  the  estate,  raise  money  for  the  payment  of 
those  debts.     Another  class  of  cases  decides,  that  if  fi'om  the  whole 

purview  of  the  will  it  appears  to  have  been  the  intention  of 
[*98]  the  testator  that  *  his  real  estate  should  be  sold,  and  the 

proceeds  of  that  real  estate  are  to  be  distributed  for  the 

purpose  for  which  it  is  given,  which  the  executors  alone  by  law  could 

perform,  then  there  is  an  implied  power  given  them  by  the  will  to 

sell  the  estate;  and  that  the  executor  who  is  to  distribute  the  money 

16G 


ELLIOT  V.  MEURYMAN.  *  99 

is  to  sell  the  estate.  Several  cases  were  cited  which  confirm  this 
proposition,  and  amongst  them  is  that  of  Forbes  v.  Peacock,  (12 
Sim.  541).  But  upon  looking  through  the  cases,  not  a  single 
authority  is  to  be  found  which  says,  that  a  simple  charge  of  the 
estate  with  the  payment  of  the  debts  does  more  than  make  a  charge 
upon  the  estate  iu  the  hands  of  the  devisee,  if  the  estate  is  devised, 
or  upon  the  estate  in  the  hands  of  the  heir-at-law,  ii  the  estate 
devolves  upon  him  by  the  law  of  inheritance  ....  The  estate 
is  oaly  subjected  in  the  hands  of  the  heir-at-law  to  a  charge  for 
funeral  and  testamentary  expenses,  and  the  charges  attending  the 
proof  of  the  will,  which  the  executrix  ruust  enforce  through  the 
medium  of  a  Court  of  Equity;  and  we  therefore  think  the  executrix 
had  no  power  to  sell  or  mortgage  the  estate.  It  is  not  within  the 
principle  of  any  of  the  cases  in  which  it  has  been  held  there  is  an 
implied  power  of  sale  or  mortgage."  See  also  Kenrick  v.  Lord 
Beauclerk,  3  B.  &  P.  175;  Doe  v.  Claridge,  G  C.  B.  ()41. 

The  next  case  to  be  noticed  (apparently  conflicting  with  Doe  d. 
Jones  V.  Hughes,)  is  the  case  of  Robinson  v.  Loivater  (17  Bcav.  532): 
there  a  testator  devised  some  messuages  in  Rutland  Place  to  his 
daughter  Elizabeth  (since  deceased)  for  life,  with  remainder  to  all 
her  children  living  at  her  decease,  and  two  closes  in  Sandfield  to  his 
son  Richard  for  life,  with  remainder  to  the  use  of  his  children  who 
should  be  living  at  his  decease,  as  tenants  in  common,  with  a 
limitation  over  iu  the  event  of  that  remainder  not  taking  effect.  And 
he  devised  his  estate  at  Arnold  to  his  son  Richard  in  fee  charged  with 
the  payment  of  the  sum  of  200Z.  due  on  mortgage  of  his  messuages 
devised  to  his  daughter  Elizabeth,  and  of  the  legacies  therein 
mentioned,  and  with  and  to  the  payment  of  his  debts,  and  funeral 
and  testamentary  expenses.  But  if  his  premises  at  Arnold  should 
not  be  sufficient  for  that  purpose,  then  he  charged  his  closes  at 
Sandfield  with  the  payment  of  such  deficiency;  and  he  appointed 
his  son  Richard  sole  executor  of  his  will.  The  testator  by  a  codicil 
revoked  the  devise  of  the  Arnold  property  to  his  son  Richard.  The 
will  was  proved  by  the  executor,  who  exhausted  the  personal  estates 
in  payment  of  debts,  except  the  mortgage  debt  charged  on  Rutland 
Place.  The  executor  also  sold  the  two  closes  in  Sandfield  to  Na- 
thaniel Sulley  {in  ivhom  the  legal  estate  in  fee  simple  icas 
vested  as  a  trustee  for  the  testator  *  and  his  heirs. )  The  [  *  99  ] 
purchaser  had  notice  of  the  will.  The  defendant  Lowater 
derived  his  title  to  Sanfield  ft-om  Nathaniel  Sulley.  The  plaintiffs, 
the  children  of  the  testator's  daughter  Elizabeth,  filed  a  bill,  in- 
sisting that  the  Sandfield  property  was  still  liable  in  the  hands  of 
the  defendant  Lowater  to  pay  off  the  mortgage  on  the  Rutland 
Place  property,  which  still  remained  unpaid.  The  bill  however  was 
dismissed  by  Sir  John  Romilhi,  M.R.,  with  costs.  "  The  case  of 
Doe  d.  Jones  v.  Hughes  (G  Exch.  223),  "  said  his  Honor,  "  is  relied 
upon  to  show,  that  the  executor  could  not  make  a  good  title  to  sell, 
and  had  no  authority  to  sell  vested  in  him.     I  find  it  difficult  to 

1G7 


*  100  ELLIOT  V.  MERRYMAN. 

reconcile  the  decision  in  that  case  with  the  numerous  authorities  to 
be  found  on  this  subject  in  Chancery;  amongst  which  I  may  refer 
to  Ball  V.  HaiTis  (4  My.  &  Cr.  264),  where  Lord  Cottenham  observes, 
that  a  charge  of  debts  is  equivalent  to  a  trust  to  sell  bo  much  as  may 
be  sufficient  to  pay  them;  Forbes  v.  Peacock  (12  Sim.  541),  which, 
on  this  point,  is  not  affected  by  the  reversal  of  the  decision  (1  Ph. 
717),  and  to  the  case  of  Gosling  v.  Carter  (1  Coll.  644). 

"Before  the  case  in  the  Exchequer,  I  had  considered  the  law  to 
be,  that  a  charge  of  debts  on  an  estate  devised,  gave  the  executors 
an  implied  power  of  sale,  because,  to  use  the  expression  of  Sir  J. 
Leach,  in  Bentham  v.  Wiltshire   (4  Madd.  49),  the  power  to  sell  is 
'implied,  from  the  produce  having  to  pass  through   their  hands   in 
the  execution  of  their  office,  as  in  the  payment  of  debts  or  legacies.' 
I  am  of  opinion,  therefore,  that  a  good  title  was  made  to  the  pur- 
chaser Nathaniel  Sulley,  and  that  the   defendants  claiming  under 
him  are  entitled  to  hold  it,  discharged  from  all  claims  in  favour  of 
the  plaintiffs."      This  decision   upon  appeal  was   affirmed  by  the 
Lords  Justices  (5  De  G.  Mac.  &  G.  272).     During  the  argument 
the  Lord  Justice  Knight-Bruce,  with  reference  to  Doe   d.  Jones  v. 
Hughes  (6  Exch.  233),  put  the  following  pertinent  question:  ''Does 
that  case  deal  with  anything  beyond  the  question  of  the  legal  es- 
tatef     Can  it  govern  the  present,  which  is  an  application  to  a  Court 
of  equity  to  give  effect  to  a  qharge?"     Again,  Lord  Justice  Turner 
asked:      "Does  a  charge  of  debts  amount  to  a  direction  to  institute 
a  Chancery  suit  ?     Would  not  that  consequence  follow  from  holding 
that  the  executor  could  not  sell  ?"     In  giving  judgment.  Lord  Jus- 
tice Turner  made   the  following  observations:      "The  question   is, 
how  and  by  whom  the  money  was  to  be  raised.     The  purpose   for 
which  it  was  to  be  raised  being  to  pay  debts,  it  must  have  been   in 
the  contemplation  of  the  testator  that  it  would  have   to  be  raised 
immediately,  but  no  power  is  given  to  the  devisees  to  raise 
[  *  100  ]  it;  and  the  will  *  containing  a  devise  of  a  life  estate  with 
contingent  remainders  over,  it  is  impossible  that,  during 
the  subsistence  of  these  contingent  remainders,  the  devisees  could 
themselves  raise  it.     On  the  face  of  this  will,  therefore,  it  was  not 
the  intention  of  the  testator  that  the  money  should  be  raised  by  the 
devisees.     Then  who  was  to  raise  it  ?     Surely  the  persons  who  would 
have  to  apply  the  fund.     It  seems  to  me,  therefore,  upon  the  whole 
scope  of  this  will,  without  reference  to  the  cases  decided  upon  the 
subject,  that  in  this  case,  at  least,  it  was  the  intention  of   the  testa- 
tor that  the  money  should  be  raised  by  the  executor;  and  if  by  the 
executor,  then  the  executor  must  be  considered  as  invested  with  all 
the  powers  necessary  to  raise  it.     I  think  there  is  abundant  reason 
for  the  conclusion  at  which  the  Master  of  the  Eolls  has   arrived  in 
this  case."     See  also  Eidsforfh  v.  Armstead,  2  K.  &  J.  333;  Ogden 
V.  Loim^y,  25  L.  J.  (Ch.)  N.  S.  198. 

In  Wrigley  v.  Sykes,  21  Beav.  337,  a  testator  ordered  all  his  debts, 
funeral  and  testamentary  expenses,  and  legacies   "  to  be  paid  and 
168 


ELLIOT  V.  MERRY.MAN.  *  101 

discharged  out  of  his  real  and  porBonal  estate."  He  then  devised 
certaiu  freehold  messuages  to  trustees  for  a  term  of  500  years,  upoa 
the  trusts  thereinafter  mentioned,  and  subject  thereto  to  his  five 
sons  in  fee,  as  tenants  in  common,  upon  condition  that  they  should 
pay,  in  equal  shares,  certain  specified  legacies  and  annuities,  and 
also  all  his  mortgage  and  otkei'  debts.  The  trusts  of  Ibo  terin  of 
500  years  were  declared  to  be,  that  if  any  of  the  sons  should,  thirty 
days  after  demand,  refuse  to  pay  his  proportion  of  the  legacies,  an- 
nuities, moi'tgage  and  other  debts,  the  trustees  should,  out  of  the 
rents  of  the  share  of  such  son,  levy  such  sums  unpaid,  and  all  costs; 
and  he  appointed  his  five  sons  executors.  Thirty-three  years  after 
the  death  of  the  testator,  the  surviving  executors  sold  the  estate,  as 
they  alleged,  to  pay  the  debts.  Sir  John  Roinilly,  M.  E.,  held  that 
they  had  power  to  sell,  and  decreed  a  specific  performance  aa^ainst 
the  purchaser.  "I  do  no  think,"  said  his  Honor,  "that  the  creation 
of  the  term,  which  has  a  distinct  and  specified  object,  supersedes 
the  general  charge  for  payment  of  debts;  which,  in  my  opinion, 
gives  the  executors  a  power  of  selling  the  estate  for  payment  of 
debts.  And  in  that  view  of  the  case,  I  am  of  opinion,  that  this  is  a 
valid  contract.  It  is  very  true  that  the  Court  will  not  compel  a 
person  to  take  a  doubtful  title;  but  if  the  Court  is  of  opinion,  upon 
due  consideration  of  the  question  of  law,  that  the  title  is  good,  the 
Court  is  bound  so  to  hold,  and  it  cannot,  in  my  opinion,  decline  to 
do  so  because  it  is  possible  that  when  the  case  arises  between  the 
parties^  some  other  Court  may  come  to  an  opposite  or  con- 
trary conclusion;  *  and  therefore,  I  am  of  opinion,  that  I  [  *101  ] 
am  right,  in  this  case,  in  compelling  the  purchaser  to  take 
what,  in  my  opinion,  is  not  a  doubtful  title.  /  shall  certainly  se- 
cure to  the  purchaser,  as  far  as  it  is  competent  for  the  Court  to  do  so, 
a  good  legal  estate  ivhe II  tlie  conveyance  is  made;  but  as  I  am  of 
opinion  that  the  executors  had  power  to  enter  into  the  contract, 
which  is  not  disputed,  and  as,  in  my  opinion,  the  title  is  good,  I 
must  decree  specific  performance."  See  also  Sabin  v.  Heape,  27 
Beav.  553;  Bolton  v.  Stannard,  6  W.  R.  (M.  li.)  570;  Greetham  v. 
Cotton,  34  Beav.Glo;  11  Jur.  N.  S.  848. 

The  conclusion  which  may  be  drawn  from  these  cases,  seems  to 
be  this,  that  where  there  is  a  general  charge  of  debts  upon  real 
estate,  the  executors  have  in  equity  an  implied  power  to  sell  it,  and 
they  alone  can  give  a  valid  receipt  for  the  purchase  money,  but  as 
they  do  not  take  by  implication  a  legal  power  to  sell,  and  cannot 
therefore  convey  the  legal  estate,  (Doe  d.  Jones  v.  Hughes,  6  Exch. 
223,)  the  persons  in  whom  it  is  vested  (if  it  be  not  alreadv  in  the 
executors  by  devise  or  otherwise;  In  re  Tanqueray-Willuume  and 
Landau,  20  Ch.  D.  405,  479)  must  concur  with  them  in  the  con- 
veyance. This  conclusion  reconciles  all  the  cases  in  equity  with 
the  apparently  conflicting  authority  of  Doe  d.  Jones  v.  Hughes  (6 
Exch.  223).  See  also  Hodkinson  v.  Quinn,  1  J.  &  H.  303,309; 
Hooper  v.  Stridton,  12  W.  11.  (V.  C.  S.)  367.     "Where  the  person  in 

169 


*  102  ELLIOT  V.  MERRYMAN. 

whom  the  legal  estate  is  vested  is  under  any  disability  cr  refuses  to 
concur,  recourse  has  been  had  to  the  provisions  of  the  Trustee  Acts, 
1850  and  1852,  Dart.  V.  &  P.  618,  5th  ed. ;  and  see  now  47  &  48 
Vict.  c.  01,  s.  14. 

The  opinion  among  conveyancers,  nevertheless,  appears  to  be, 
that  where,  subject  to  a  charge  of  debts,  an  estate  is  devised  to  per- 
sons either  beneficially  or  as  trustees  for  special  purposes,  a  sale 
can  be  eifected  by  the  devisees  alone;  and  Lord  St.  Leonards,  in 
the  last  edition  of  his  work  on  Vendors  and  Purchasers,  with  refer- 
ence to  the  cases  of  Robinson  v.  Loivater,  and  Wrigley  v.  Sykes, 
says,  "They  have  introduced  considerable  difficulty  upon  titles,  by 
imjilying  a  power  of  sale  in  executors  from  a  charge  of  debts,  al- 
though the  estate  is  devised  to  others.  This  is  contrary  to  the 
received  opinion.  It  would  not  be  safe  to  rely  on  the  authority  of 
these  cases."  See  an  article  in  the  "Jurist,"  vol.  ii ,  N.  S.  68. 
Sugd.  V.  &  P.,  13th  ed.  p.  545,  n.  (1).  See  also.  Dart's  V.  &  P. 
618,  619,  620,  621,  5th  ed.;  2  David.  Con.,  299  n.,  985  n.,  999  n., 
3rd  ed. 

We  must  remember,  however,  that  Robinson  v.  Loivater  is  stamped 
with  the  high  authority  of  the  Lords  Justices  of  the  Court  of  Ap- 
peal. See  also  Hamilton  v.  Buckmaster,  3  L.  K.  Eq.  323. 
[  *  102]  *It  is  however  clear  that  where  an  executor  is  also  devisee 
of  an  estate  charged  icith  jyayment  of  debts,  he  will  be  able 
to  give  a  valid  title  to  it,  as  a  bond  fide  purchaser  or  mortgagee 
may  presume  that  ho  is  dealing  with  it  for  the  purpose  of  adminis- 
tration. Such  purchaser  or  mortgagee  therefore  will  not  be  bound 
to  look  to  the  application  of  the  purchase-money.  Corser  v.  Cart- 
wright,  8  L.  R.  Ch.  App.  971;  7  L.  E.  Ho.  Lo.  731,  736;  Colyer  v. 
Finch,  5  Ho.  Lo.  Ca.  922;  West  of  England  and  South  Wales  Dis- 
trict Bank  v.  Murch,  23  Ch.  D.  138. 

AVhere  there  is  an  express  trust  for  sale,  at  a  particular  period 
which  has  arrived,  the  trustees  can  sell,  without  the  concurrence  of 
the  executors,  who  might  previously  have  sold  under  the  implied 
power  arising  from  a  general  charge  of  debts.  See  Hodkinson  v. 
Quinn,  1  J.  &  H.  303;  there  a  testator,  after  a  charge  of  debts,  de- 
vised certain  real  estates,  subject  to  the  payment  of  his  said  debts, 
to  trustees  upon  trusts  for  his  daughters  and  their  families,  and  af 
ter  the  death  of  the  surviving  daughter,  upon  trust  to  sell  .with 
power  to  give  receipts,  and  to  apply  the  proceeds  after  satisfying 
all  encumbrances  affecting  the  said  real  estates,  upon  certain  trusts. 
The  daughters  being  both  dead,  it  was  held  on  demurrer  by  Sir. 
W.  Page-Wood,  V.-C.,  that  the  trustees  could  make  a  good  title 
without  the  executors.  "It  would,"  said  his  Honor,  "be  a  very 
serious  conclusion  to  hold  that  this  decision  of  Robinsons.  Loicater, 
has  rendered  it  possible  for  executors  to  sell  after  an  actual  aliena- 
tion by  devisees.  None  of  the  authorities  have  gone  that  length. 
They  decide  only  that  the  executors  have  that  power  .  .  .  Irre- 
spectively of  the  reasons  afforded  by  this  particular  will,  I  should 
170 


ELLIOT  V.  MERRYMAN.  *  103 

be  inclined  to  hold  generally,  that  any  sale  by  trustees  under  a 
power,  prior  to  an  actual  sale  by  executors,  would  be  effectual.  But 
in  this  will,  even  assuming  that  the  executors  have  a  complete  legal 
power,  when  you  find  it  prescribed  as  the  duty  of  the  trustees  to 
exercise  another  power  at  a  given  period,  for  the  express  purpose 
(among  others)  of  doing  what  the  executors'  power  is  intended  to 
effect  it  follows  that  a  sale  by  the  trustees  must  be  completely  effec- 
tual, and  no  executor  could  afterwards  insist  on  the  right  under  his 
im])lied  power  to  disturb  that  sale." 

The  law  upon  this  subject  has  been  partially  altered  by  22  &  23 
Vict.  c.  35  (Lord  St.  Leonards'  Act),  passed  13th  August,  Ibf/J,  by 
which  it  is  enacted,  that  ''where  by  any  will  which  shall  come  into 
operation  after  the  passing  of  this  Act,  the  testator  shall  have  charged 
his  real  estate,  or  any  specific  portion  thereof,  with  the  payment  of 
his  debts,  or  with  the  payment  of  any  legacy  or  other 
specific  sum  of  money,  and  shall  *have  devised  the  estate  [  *  103  ] 
so  charged  to  any  trustee  or  trustees  for  the  whole  of  his 
estate  or  interest  therein,  and  shall  not  have  made  any  express 
provision  for  the  raising  of  such  debt,  legacy,  or  sum  of  money  out 
of  such  estate,  it  shall  be  lawful  for  the  said  devisee  or  devisees 
in  trust,  notwithstanding  any  trusts  actually  declared  by  the  tes- 
tator, to  raise  such  debts,  legacy,  or  money  as  aforesaid,  by  a  sale 
and  absolute  disposition  by  public  auction  or  private  contract  of 
the  said  hereditaments  or  any  part  thereof,  or  by  a  mortgage  of 
the  same,  or  partly  in  one  mode  and  pailly  in  the  other,  and  any 
deed  or  deeds  of  mortgage  so  executed  may  reserve  such  rate  of  in- 
terest, and  fix  such  period  or  periods  of  repayment,  as  the  person  or 
persons  executing  the  same  shall  think  proper"  (sect.  14). 

The  powers  conferred  by  the  last  section  shall  extend  to  all  and 
every  person  or  persons  in  whom  the  estate  devised  shall  for  the 
time  being  be  vested  by  survivorship,  descent,  or  devise,  or  to  any 
person  or  persons  who  may  be  appointed  under  any  power  in  the 
will,  or  by  the  Court  of  Chancery,  to  succeed  to  the  trusteeship 
vested  in  such  devisee  or  devisees  in  trust  as  aforesaid  (sect.  15). 

If  any  testator  who  shall  have  created  such  a  charge  as  is  described 
in  the  fourteenth  section,  shall  not  have  devised  the  hereditaments 
charged  as  aforesaid  in  such  terms  as  that  his  whole  estate  and  in- 
terest therein  shall  become  vested  in  any  trustee  or  trustees,  the  execu- 
tor or  executors  for  the  time  being  named  in  such  will  (if  any)  shall 
have  the  same  or  the  like  power  of  raising  the  said  monies  as  is 
hereinbefore  vested  in  the  devisee  or  devisees  in  trust  of  the  said 
hereditaments,  and  such  power  shall  from  time  to  time  devolve  to 
and  become  vested  in  the  person  or  persons  (if  any;  in  whom  the 
execiatorship  shall  for  the  time  being  be  vested;  but  any  sale  or 
mortgage  under  this  Act  shall  operate  only  on  the  estate  and  inter- 
est, whether  legal  or  equitable,  of  the  testator,  and  shall  notxender 
it  unnecessary  to  get  in  any  outstanding  subsisting  legal  estate 
(sect.  10). 

171 


*  104  ELLIOT  V.  MERRY31AN. 

Purchasers  or  mortaagees  shall  not  be  bound  to  inquire  whether 
the  powers  conferred  by  sections  fourteen,  fifteen,  and  sixteen  of 
this  Act,  or  either  of  them,  shall  have  been  duly  and  correctly  ex- 
ercised by  the  person  or  persons  acting  in  virtue  thereof  (sect.  17). 

The  provisions  contained  in  sections  fourteen,  fifteen,  and  six- 
teen, shall  not  in  any  way  prejudice  or  affect  any  sale  or  mortgage 
already  made  or  hereafter  to  be  made,  under  or  in  pursuance  of 
any  will  coming  into  operation  before  the  passing  of  this  Act  (13th 
August,  1859) ;  but  the  validity  of  any  such,  sale  or  mort- 
[  *  104'  ]  gage  shall  be  *  ascertained  and  determined  in  all  respects 
as  if  this  Act  had  not  passed;  and  the  said  several  sections 
shall  not  extend  to  a  devise  to  any  person  or  persons  in  fee  or  in 
tail,  or  for  the  testator's  whole  estate  and  interest  charged  with 
debts  or  legacies,  nor  shall  they  affect  the  power  of  any  such  de  - 
visee  or  devisees  to  sell  or  mortgage  as  he  or  they  may  by  law  now 
do  (sect.  18). 

There  is  no  implied  power  in  administrators,  even  with  the  will 
annexed,  as  in  the  case  of  executors,  to  sell  the  real  estate  for  pay- 
ment of  debts,  nor  is  power  conferred  upon  them  to  do  so  under 
sect.  16  of  22  &  23  Vict.  c.  35.  In  re  Clmj  and  Tefeleij,  16  Ch.  D. 
3;  Ricketfs  v.  Leivis,  20  Ch.  D.  745. 

With  reference  to  Lord  St.  Leonard's  Act,  a  learned  writer  ob- 
serves that  the  difficulty  created  by  the  decisions  has  been  removed 
in  two  cases:  1st,  by  giving  a  devisee  of  the  fee,  who  is  a  trustee 
for  totally  foreign  purposes,  a  power  to  sell  or  mortgage  for  the 
satisfaction  of  the  charge  of  debts;  and,  2ndly,  by  giving  the  exe- 
cutor a  power  to  sell  or  mortgage  when  the  estate  is  cut  up  by  suc- 
cessive limitations  without  the  intervention  of  a  trustee  of  the  legal 
fee.  But  in  cases  where  the  testator  died  before  the  13th  August, 
1859,  or  where  there  is  a  devise,  subject  to  a  charge  of  debts,  to  a 
beneficial  owner  in  fee  or  in  tail,  or  for  all  other  the  testator's  in- 
terest in  the  estate,  the  Act  leaves  this  question  in  the  same  doubt 
and  perplexity  as  before.  No  testator,  then,  ought  to  create  a  charge 
of  debts  upon  his  real  estate,  without  at  the  same  time  expressly 
creating  a  trust  or  power  for  giving  effect  to  the  charge,  and  with- 
out distinctly  pointing  out  the  persons  by  whom  the  trust  or  power 
is  to  be  exercised:  Hayes  and  Jarm.  Cone.  Forms  of  Wills,  by  East- 
wood, p.  467. 

Where  there  are  trustees  upon  trust  to  sell  and  give  receipts  for 
the  proceeds  of  real  estate,  the  concurrence  of  tenants  for  life  of  the 
proceeds  is  not  rendered  necessarv  by  sections  56  and  63  of  the 
Settled  Land  Act,  1882  (45  &  46  Vict.  c.  38),  upon  the  sale  by  the 
trustees,  and  even  if  such  concurrence  were  necessary,  the  order  of 
the  Court  would  be  sufficient  to  enable  the  trustees  to  sell  without 
joining  the  tenants  for  life,  or  any  of  them,  in  the  conveyance  to 
the  purchaser.  Taylor  v.  Poncia,  25  Ch.  D.  646.  See  also,  In  re 
Earle  and  Webster's  Contract,  24  Ch.  D.  144. 

As  to  the  consents  of  tenants  for  life  within  the  meaning  of  sec- 
172 


ELLIOT  V.  MEKUYJLVN.  *  106 

tions  m  and  03  of  the  Act  of  1882,  see  the  Settled  Land  Act,  1884 
(47  &  48  Vict.  c.  18),  sect.  6;  and  as  to  powers  to  be  exercised  only 
with  leave  of  the  Court,  see  lb.,  t^ect.  7. 

3.  How  far  Real  Estate  in  the  hands  of  an  Alienee  of 
the  Devisee  *  or  Heir-at-Laiv  is  liable  for  JJebfs.] — Real  es-  [  *  105  ] 
tate  in  the  bands  of  an  alienee  of  a  devisee,  or  heir-at-law, 
where  there  has  been  no  charge  of  debts  by  a  testator,  is  discharg^ed 
from  the  debts,  and  the  heir  or  devisee  only  remains  personally 
liable  to  the  extent  of  the  value  of  the  land  alienated.  Richardson 
v.  Norton,  7  Beav.  112;  Spademan  \.  Tin)brcll,S  Sim.  253;  Prmm  v, 
Insall,  1  Mac.  &  G.  449;  Kinderley  v.  Jervis,  22  Beav.  1;  Jones  v. 
Noi/es,  4  Jur.  N.  S.  1033;  Dillces  v.  Broadmead,  2  De  G.  F.  &  Jo. 
506;  Hynes  v.  Redington,  131.  Ch.  II.  200. 

But  though  there  be  no  charge  of  debts,  a  conveyance  to  new  trus- 
tees is  not  such  an  alienation  under  3  Will.  &  M.  c.  14,  s.  7,  as  would 
prevent  the  interests  so  aliened  from  being  affected  by  an  execution 
at  the  suit  of  the  creditors  of  the  devisor:  Coojje  v.  Cressivell,  2  L. 
R.  Ch.  App.  112,  122. 

A  mortgage,  however,  by  an  equitable  tenant  for  life  under  the 
will  is  such^an  alienation  pj-o  tanto,  that,  though  the  creditors  might 
proceed  against  the  trustees  and  the  heir,  the  interest  of  the  mort- 
gagee would  be  protected  from  execution.     Ibid. 

And  it  has  been  recently  held  by  the  Lords  Justices,  reversing  ihe 
decision  of  Hall,  V.-C,  that  an  equitable  mortgage  by  deposit  of  title 
deeds  with  a  memorandum  of  charge,  by  a  devisee,  is  an  alienation 
which  pro  tanto  prevents  a  creditor  of  the  testator  from  subsequently 
obtaining  a  charge  on  the  estate  as  assets  under  3  &  4  Will.  4,  c. 
104.  See  British  Mxdual  Investment  Company  v.  Smart,  10  L.  R. 
Ch.  App.  507,  overruling  Carter  v.  Sanders,  2  Drew.  248. 

A  purchaser  from  the  heir  or  devisee  is  not  bound  to  see  to  the 
payment  of  debts  of  the  ancestor  or  testator,  whetherby  specialty  or 
simple  contract  (Higgins  v.  Shatc,  2  Dru.  and  War.  35),  but  if  be 
has  not  paid  the  purchase-money  he  may,  at  the  suit  of  the  creditors 
of  the  testator  or  ancestor,  be  restrained  from  parting  with  it.  Green 
V.  Loives,  3  Bro.  C.  C.  217. 

Where,  however,  there  is  a  charge  o/de6^s  upon  real  estate,  a  pur- 
chaser from  the  heir  or  devisee,  or  their  alienee,  cannot  safely  com- 
plete without  either  the  concurrence  of  the  executors,  or  without  be- 
ing satistied  that  all  the  debts  have  been  paid.  See  Storryy.  WaU^h, 
18  Beav.  559;  Hope  v.  Liddell,  21  Beav.  183.  In  Austin  \.  Martin, 
29  Beav.  523,  real  estate  was  devised  to  A.  B.  and  bis  heirs  in  trust 
to  sell,  with  power  to  the  trustee  or  trustees  to  give  receipts  for  the 
purchase-money.  A.  B.  was  to  pay  the  debts  and  hold  the  surplus 
on  certain  trusts,  and  he  was  appointed  sole  executor.  A.  B.  hav- 
ing i-enounced  and  disclaimed,  it  was  held  by  Sir  J.  Romilly,  M. 
R.,  that  the  heir-at-law,  who  had  taken  out  administration, 
*  could  sell  the  estate  and  give  valid  receipts.  \  *  106  ] 

173 


*  107  ELLIOT  V.  MERRTMAN. 

4.  Liability  of  Purchasers  of  Personal  Estate  from  Executors  or 
Administrators  to  see  to  application  of  the  Purchase -money. '\ — How- 
ever personal  estate  may  be  bequeathed,  it  must  be  applied,  iu  the 
first  place,  by  the  executors  for  payment  of  the  debts  of  the  testator, 
in  a  due  covirse  of  administration.  Upon  the  same  principles,  there- 
fore, by  which  a  purchaser  of  real  estate,  devised  for  the  general  pay- 
ment of  debts,  is  exempted  from  seeing  to  the  application  of  the  pur- 
chase-money, it  is  a  general  rule  that  a  person  who  purchases  or 
takes  a  mortgage  of  leaseholds  or  other  personalty  from  an  executor 
or  administrator  is  not  bound  to  pee  to  the  application  of  the  pur- 
chase money.  "  After  the  sale  is  made,  the  creditors  cannot,"  as  ob- 
served by  the  Master  of  the  Rolls  in  the  principal  case,  "  break  in 
upon  it.  See  Bonney  v.  Ridgard,  1  Cox.  145;  Scott  v.  Tijler,  2  Dick. 
725;  Mead  v.  Orrery,  3  Atk.  240;  Andrew  v.  IVrigley,  4  Bro.  C.  C. 
125;  lifLeod  v.  Drummond,  17  Ves.  154;  Keane  v  Roberts,  4  Madd. 
357;  Ward  v.  Ward,  4  Ir.  Ch.  Eep.  215;  Humble  v.  Bill,  2  Vern. 
444.  The  last-mentioned  case,  however,  was  reversed  in  the  House 
of  Lords,  under  the  name  of  Savage  v.  Humble,  3  Bro.  P.  C.  5,  Toml. 
ed.,  in  the  opinion  of  subsequent  judges  erroneously:  Eicer  v.  Cor- 
bet, 2  P.  Wms.  148;  Andrew  v.  Wrigley,  4  Bro.  C.  C.  136. 

The  sale  or  mortgage  of  a  chattel  by  an  executor  will  be  good 
against  both  the  residuary  pecuniary  and  specific  legatees,  as  well 
as  the  creditors  of  the  testator,  whose  remedy,  in  case  of  the  misap- 
pli  nation  of  the  money  by  the  executor,  will  not  be  against  the  pur- 
chaser or  mortgagee,  but  against  the  executor;  nor  will  notice  of  the 
will  or  of  the  bequest  contained  in  it  be  prejudicial  to  the  purchaser 
or  mortgagee.  See  Burting  v.  Stonard,  2  P.  Wms.  150;  M'Leod  v. 
Drummond,  17  Ves.  163,  169;  Andrew  v.  Wrigley,  4  Bro.  C.  C.  125; 
Keane  v.  Robarts,  4  Madd.  332,  357;  Gray  v.  Johnston,  3  Law  R. 
Ho.  Lo.  1 ;  Berry  v.  Gibbons,  8  L.  R.  Ch.  App.  747. 

In  Ewer  v.  Corbet,  2  P.  Wms.  148,  one  possessed  of  a  term  for 
years  devised  it  to  A.,  and  died  indebted,  having  madeB.  his  execu- 
tor. The  executor  sold  the  term,  upon  which  the  legatee  of  the  term 
brought  a  bill  against  the  purchaser,  insisting  that,  the  term  being 
bequeathed  to  the  plaintiff,  the  executor  was  but  a  trustee,  and  that 
the  purchaser  must  have  notice  of  this  trust,  the  term  having  been 
bought  of  the  executor,  and  consequently  must  be  taken  subject  to 
the  trust.  However,  Sir  J.  Jekyll,  M.  R.,  observed,  '"I  take 
[  *  107  ]  it  to  have  been  resolved,  and  with  great  reason,  *  that  an  ex- 
ecutor, where  there  are  debts,  may  sell  a  term,  and  the  devisee 
of  the  term  has  no  other  remedy  but  against  the  executor  to  recover 
the  value  thereof,  if  there  be  suflScient  assets  for  the  payment  of 
debts.  As  for  the  notice  of  the  will  and  of  the  devise  of  the  term 
to  a  third  person,  that  is  nothing;  for  every  person  buying  of  an 
executor,  where  he  is  named  executor,  must,  of  necessity,  have  no- 
tice; so  that  if  notice  were  to  be  an  hindrance,  then,  of  consequence, 
no  executor  might  sell.  It  is  not  reasonable  to  put  every  purchaser 
of  a  lease  from  an  executor  to  take  an  account  of  the  testator's  debts, 
174 


ELLIOT  V    MERRYMAN.  *108 

nor  has  be  any  means  to  discover  tbem.  On  the  contrary,  as  tbo 
whole  personal  estate  of  the  testator  is  liable  to  the  debts,  this  lease 
must  f  inter  alia)  of  necessity  be  liable,  and  therefore  may  be  sold 
by  the  executor.  If  equity  were  otherwise,  it  would  be  a  great  hind- 
rance to  the  payment  of  debts  and  legacies,  and  w-ould  lay  an  em- 
bargo upon  all  personal  estates  in  the  hands  of  executors  and  admin- 
istrators, which  would  be  attended  with  great  inconvenience."  See 
also  Humble  v.  Bill,  2  Vern.  445;   Watts  v.  Kancie,  Toth.  77. 

The  fact  that  a  mortgage  of  part  of  the  assets  has  been  made  to 
secure  a  debt  originally  contracted  on  the  personal  security  of  an 
executor,  and  without  reference  to  the  assets,  i."  immaterial.  See 
Miles  V.  Durvford,  2  De  G.  Mac.  &  G.  641,  in  which  the  Lord  Jus- 
tices differed  as  to  this  point  from  Sir  R.  T.  Kindersley,  V.-C.  (See 
2  Sim.  N.  S.  234.)  '"The  only  evidence,"  said  Lord  Justice  Knight- 
Bruce,  "is  that  the  advances  were  originally  made  without  security, 
and  that  security  was  afterwards  added.  That  is  a  circumstance 
deserving  attention,  but  it  does  not  go  far.  It  is  not  inconsistent 
with  probability  that  the  advances  were  made  for  a  purpose  for 
iL'hich  the  executor  viight  j^roperly  borrow  as  executor.  I  think  the 
presumption  is  in  favour  of  the  propriety  of  the  transaction,  and 
that  the  plaintiff  wholly  fails."  See  also  Haynes  v.  Forshaw,  11 
Hare,  93. 

An  executor  or  administrator  may  not  only  pledge  or  mortgage 
the  assets,  but  may  also  give  to  the  mortgagee  of  leaseholds  a 
power  to  sell  and  give  receipts  for  the  purchase-money.  See  Russell 
V.  Plaice,  18  Beav.  21;  and  see  Cruikshank  v.  Duffin,  13  L.  R.  Eq. 
555,  where  a  mortgage  with  a  power  of  sale  by  an  executor  to  a 
Building  Society  was  held  good. 

So  it  has  been  held  that  an  executor  has  power  to  mortgage  lease- 
hold property  of  the  intestate  to  secure  a  sum  due  for  municipal 
rates  partly  accrued  due  during  the  life  of  the  intestate,  and  partly 
afterwards:  Douglas  v.  Douglas,  9  L.  R.  I.  54. 

It  has  been  held  by  Lord  Romilly,  M.  R.,  that,  where 
there  *  is  an  express  power  to  mortgage,  the  donee,  as  in-  [  *  108  ] 
cident  to  such  power,  has  atithority  to  give  a  power  of  sale 
to  the  mortgagee.  Bridges  v.  Longman,  24  Beav.  27 ;  CooA;  v.  Da^csov, 
29  Beav.  123,  128,  3  De  G.  F.  &  J.  121;  Leigh  v.  Lloyd,  2  De  G.  J.  & 
S.  830.  In  re  Chaioner^s  v:ill,  8  L.  R.  £q.  509;  on  this  point  over- 
ruling Clarke  v.  The  Royal  Panopticon,  4  Drew.  26,  and  Sanders  v. 
Richards,  2  Col.  568.  And,  by  Lord  Cranworth's  Act  (23  &  24 
Vict.  c.  145),  8.  11,  powers  of  sale  were  rendered  incident  to  mort- 
gages. This  enactment  was  repealed  by  the  71st  section  of  the 
Conveyancing  and  Law  of  Property  Act,  1881  (44  &  45  Yict.  c.  41), 
which  makes  (together  with  other  powers)  a  power  of  sale  incident 
to  mortgages  by  deed  under  the  Act  (sect.  19). 

But  where  an  absolute  purchase  is  held,  in  consequence  of  the 
relation  between  the  parties,  to  be  available  as  a  security  only,  the 

175 


*  109  ELLIOT  V.  MERRYMAN. 

Court  will  not  import  into  the  tz'ansaction  a  power  of  sale.  Pearson 
V.  Benson,  28  Beav.  598 ;  and  see  Drake  v.  Williamson,  25  Beav.  622. 

Where  money  was  ordered  by  the  Conrt  to  be  raised  by  mort- 
gage of  an  infant's  estate  for  payment  of  debts  and  costs,  the  Court 
will,  it  seems,  if  the  mortgagee  requires  it,  authorise  the  insertion 
of  a  power  of  sale  in  the  mortgage  deed:  Selby  v.  Cooling,  23 
Beav.  418. 

So  likewise  an  executor  may  give  to  a  person  to  whom  he  has 
assigned  the  book  debts  of  the  testator  by  way  of  mortgage,  a  power 
of  attorney  to  collect  the  debts  in  his  name.  Earl  of  Vane  v.  Rig- 
den,  5  L.  R.  Ch.  App.  663. 

If  there  be  a  specific  legatee  of  a  chattel,  it  is  desirable  to  have 
his  concurrence  to  a  sale  of  it,  as  the  executor  may  have  done  some  act 
amounting  to  an  assent  (Tomlinson  v.  Smith,  Rep.  temp.  Finch,  378), 
but  the  difficulty  does  not  arise  when  the  legatee  is  also  executor. 
Cole  V.  Miles,  10  Hare,  179;  Taylor  v.  Haivkins,  8  Ves.  209;  Attor- 
ney-General y.  Potter,  5  Beav.  164 

If  the  executor  or  other  person  who  by  reason  of  a  charge  of 
debts  and  legacies  could  make  a  good  title,  convey  to  the  devisee  or 
other  person  entitled  to  the  property  subject  to  the  charge  by  deed, 
reciting  the  payment  of  the  charge,  out  of  the  personal  estate,  a 
purchaser  from  such  devisee  or  other  person  will  not  be  bound  to 
see  to  the  application  of  the  purchase-money.  Stoiiry  v.  Walsh,  18 
Beav.  559.  See  also  Forshaio  v.  Higginson,  26  L.  J.  N.  S.  Ch.  174, 
8  De  G.  Mac.  &  G.  827. 

Although  an  executor  has  power  to  give  a  person  advancing  money 

to  him  a  lien  on  specific  assets,  he  cannot  enable  a  person  from 

whom  he  obtains  a  loan  to  stand  as  a  creditor  upon  or  to  prove 

against  the  estate  in  competition  with  the  creditors  of  the 

[  *  109  ]   testator.     *  See  Farhall  v.  Farhall,  7  L.  E.  Ch.  App.  123, 

reversing  S.  C,  12  L.  R.  Eq.  98. 

The  Master  of  the  Rolls,  in  the  principal  case,  mentions  two  ex- 
ceptions from  the  rule.  As  to  the  first,  he  observes,  "  that  personal 
estate  may  be  clothed  with  such  a  particular  trust,  that  it  is  possi- 
ble the  Court,  in  some  cases,  may  require  a  purchaser  of  it  to  see 
the  money  rightly  applied."  This  observation  has  been  approved 
of  by  Lord  Kenyon,  M.  R.,  in  Bonney  v.  Ridgard,  4  Bro.  C.  C.  130; 
1  Cox,  145.  See  M^Leod  v.  Drummond,  17  Ves.  161,  162;  In  re 
Johnston'' s  Estate,  15  Ir.  Ch.  Rep.  260. 

The  second  exception  from  the  rule,  mentioned  by  the  Master  of 
the  Rolls,  is,  where  xhere  is  a  fraud  in  the  case  on  the  part  of  a 
purchaser  or  mortgagee,  which  fraud  will  be  inferred  in  many  in- 
stances. Thus,  where  an  executor  disposes  of  or  pledges  his  testa- 
tor's assets  in  payment  of  or  as  a  security /or  a  debt  of  his  otvn,  the 
person  to  whom  they  are  disposed  of  or  pledged  will  take  them 
subject  to  the  claims  of  the  creditors,  specific  and  general  legatees, 
of  the  testator:  thus,  in  Hill  v.  Simpson,  7  Ves.  152,  Simpson,  an 
executor,  immediately  after  the  death  of  his  testatrix,  Mrs.  Smith, 
176 


ELLIOT  V.  MERRYMAN.  *  110 

transferred  certain  funds  standing  in  the  name  of  John  Rmith,  her 
deceased  husband,  to  whom  she  was  executrix,  and  other  funds  • 
standing  in  her  name  and  in  the  name  of  her  co-executor,  to  Moifatt 
&  Co.,  his  bankers,  as  a  security  for  such  sums  as  he  then  owed,  or 
might  afterwards  owe  them.  Moffatt  «fe  Co.  denied  that  they  knew, 
or  suspected,  that  the  funds  were  not  at  th(i  time  of  the  transfer  the 
absolute  property  of  Simpson,  as  executor  or  devisee  of  Mrs.  Smith; 
or  that  they  were  part  of  the  personal  estate  of  John  Smith;  on  the 
contrary,  they  beheved  they  were  Simpson's  own  property;  and  ho 
represented  to  them  that  he  was  absolutely  entitled  thereto  subject 
only  to  an  annuity  of  20/.  to  Elizabeth  Smith'ssister  during  her  life, 
and  to  a  few  very  ^mall  legacies:  that  he  had  full  right  to  dispose 
thereof,  and  would  have  disposed  thereof  l)ut  for  the  low  ])rico  of 
the  funds,  which  he  expected  would  rise.  They  also  stated  that  they 
did  not  know  any  of  the  legacies  of  John  Smith  to  the  plaintiffs,  or 
any  other  persons,  were  unpaid.  However,  Sir  1^^.  Grant,  M.  R., 
held  that  the  general  legatees  could  follow  the  funds  transferred  to 
the  bankers.  "  In  this  instance,"  observed  his  Honor,  "the  assign- 
ment was  made  in  less  than  a  month  after  the  death  of  Mrs.  Smith. 
There  is  not,  therefore,  the  least  ground  for  the  presumption  of 
right  acquired  to  the  assets  of  Mr.  or  Mrs.  Smith  by  payments 
made  in  that  short  interval  on  account  of  either  estate.  It 
is  not  pretended  *  it  was  to  satisfy  any  claim  on  either  es-  [  *  110  ] 
tate;  for  the  express  purpose  appears  to  have  been  to  se- 
cure a  debt  of  his  own,  which  he  already  owed  to  the  bankers,  and 
other  advances  they  were  to  make  by  taking  up  bills  of  his  then  ac- 
tually outstanding.  They  had  distinct  notice,  therefore,  that  the 
money  was  not  to  be  applied  to  any  demand  upon  either  estate; 
but  the  assets  were  to  be  wholly  applied  to  the  private  purpose  of 
the  executor.  Allowing  every  case  to  remain  undisturbed,  does  it 
follow  from  any  that  an  executor  in  the  first  month  after  the  testa- 
tor's death  can  apply  the  assets  in  payment  of  his  own  debt;  and 
that  a  creditor  is  perfectly  safe  in  so  receiving  and  applying  them, 
provided  he  abstains  from  looking  at  the  will,  which  would  show 
the  existence  of  unsatisfied  demands?  I  am  for  the  moment  keep- 
ing out  of  sight  the  representation  made  by  Simpson,  and  suppos- 
ing the  question  to  be,  whether  an  executor  may  thus  deal  and  be 
dealt  with;  and  it  is  clear,  no  rule  of  justice  permits,  or  of  conveni- 
ence requires,  that  he  should  have  this  unbounded  power.  Though 
it  may  be  dangerous  at  all  to  restrain  the  power  of  purchasing 
from  him,  what  inconvenience  can  there  be  in  holding,  that  the  as- 
sets, known  to  be  such,  should  not  be  applied  in  any  case  to  the  ex- 
ecutor's debt,  unless  the  creditor  could  be  first  satisfied  of  his  right? 
It  may  be  essential  that  the  executor  should  have  the  power  to  sell 
the  assets;  but  it  is  not  essential  that  he  should  have  the  power  to 
pay  his  own  creditor,  and  it  is  not  just  that  one  man's  property 
should  be  applied  to  the  payment  of  another  man's  debt.  ...  It 
was  gross  negligence  not  to  look  at  the  will,  under  which  alone  a 

12   WHITE  ON   EQUITY.  177 


*  Hi  ELLIOT  V.  MERRYMAN. 

title  could  be  given  to  them.  It  was  not  necessary  to  use  any  exer- 
tion to  obtain  information,  but  merely  not  to  shut  their  eyes  against 
the  information  which,  without  extraordinary  neglect,  they  could 
not  avoid  receiving.  No  transaction  with  executors  can  be  render- 
ed unsafe,  by  holding  that  assets  transferred  under  such  circum 
stances  may  be  followed."  See  also  Haynes  v.  Forshaiv,  11  Hare, 
93;  Wilson  v.  Moore,  1  My.  &  Iv.  337;  Wilson  \.  Leslie,  5  W.  R.  (V.- 
C.  K)  815;  Rolfe  v.  Gregory,  11  W.  R.  (V.-C.  K.)  1016;  Farhall  v. 
Farhall,  7  L.  R.  Eq.  286;  Jones  v.  Stohivasser,  16  Ch.  D.  577. 

A  different  doctrine  appears  to  have  formerly  prevailed  in  Mead 
v.  Orrery,  3  Atk.  235,  and  Nugent  v.  Gifford,  1  Atk.  463.  The  au- 
thority of  these  cases,  however,  is  weakened,  if  they  are  not  com- 
pletely overruled,  by  Hill  v.  Simpson ;  ahd  see  Bonney  v.  Ridgard, 

1  Cox,  145,  where  Sir  Lloyd  Kenyon,  M.  R.,  in  commenting  on  Mead 

V.  Loi^d  Orrery,  says,  that  if  it  had  come  before  him,  he 
[  *  111  ]  should  have  decided  it  in  direct  *  opposition  to  that  au- 
thority. It  may  be  remarked,  however,  that  in  Nugent  v. 
Gifford  the  executor  was  the  sole  residuary  legatee;  and  in  Mead  v. 
Lord  Orrery,  he  was  one  of  of  the  residuary  legatees,  and  his  co-ex- 
ecutors joined  with  him  in  the  assignment.  If,  therefore,  these 
cases  are  rightly  decided,  they  seem  to  establish  that  where  an  ex- 
ecutor is  also  residuary  legatee,  fraud  or  collusion  will  not  neces- 
sarily be  inferred  as  against  the  person  to  whom  he  sells  or  mort- 
gages a  chattel  of  the  testator's  in  payment  of  or  as  a  security  for 
his  own  debt.  See  M^Leod  v.  Drimimond,  17  Yes.  163,  164;  Bed- 
ford V.  Woodham,  4  Yes.  40,  note;  William^  v.  Massy,  15  Ir.  Ch. 
Rep.  47. 

It  is  clear,  that,  in  the  absence  of  fraud  or  collusion,  the  assign- 
ment by  an  executor,  as  a  security  for  his  own  debt,  of  a  chattel  spe- 
cifically bequeathed  to  him,  will  be  good:  Taylor  v.  Hawkins,  8 
Yes.  209. 

A  purchaser,  however,  with  notice  of  the  testator's  debts  being  un- 
paid, will  not  be  allowed  to  retain  a  chattel  obtained  from  an  executor 
as  a  security  for  his  own  debt,  although  the  executor  is  also  specific 
or  residuary  legatee.  See  Crane  v.  Drake,  2  Yern.  616;  there  the 
purchaser,  with  notice  of  the  plaintiff's  debt,  bought  a  lease  from 
the  executor  and  devisee,  upon  an  arrangement  that  part  of  the  pur- 
chase-money was  to  go  in  payment  of  a  debt  due  to  him  from  the 
executor:  it  was  held  that  the  sale  was  not  binding  upon  the  plain- 
tiff, the  Lord  Chancellor  saying,  "  The  defendant  was  a  party,  and 
consenting  to  and  contriving  a  devastavit."  See  also  Andreio  v. 
Wrigley,  4  Bro.  C.  C.  139.  See  Nugent  v.  Gifford,  1  Atk.  464;  M'Leod 
V.  Drummond,  17  Yes.  163. 

So,  where  the  executor  has  sold  assets  for  an  undervalue,  or  has 
sold  or  mortgaged  them  to  one  who  has  notice  that  the  testator  had 
left  no  debts,  or  that  all  debts  had  been  paid,  a  sale  or  mortgage  of 
the  personal  estate  by  the  executor  will  not  be  valid.  Eicer  v.  Corbet, 

2  P.  Wms.  148;  Scott  v.  Tyler,  2  Dick.  725;  Drohan  v.  Drohan,  1 

178 


ELLIOT  V.  MERRYMAN.  *  112 

Ball,  and  B.  ISo;  Rice  v.  Gordon,  11  Beav.  265;  and  see  Stroughill 
V.  Anstey,  1  De  G.  Mac.  &  G.  G35;  M'Mullen  v.  (flieAlly,  15  Ir.  Cb. 
Rep.  251;  Hall  v.  Andrews,  27  L.  T.  R.  (N.  S.)  105;  2U  W.  R.  (V.- 
C.  W.)  799. 

The  exceptions  from  the  general  rule,  that  a  purchaser  from  an 
executor  is  not  Vx^uud  to  see  to  the  application  of  the  purchase -money, 
have  been  well  summed  up  by  Lord  Thurloic  in  Scott  v.  Tyler,  2  Dick. 
725.  "If,"  observes  his  Lordship,  "one  concerts  with  an  executor, 
by, obtaining  the  testator's  effects  at  a  nominal  price  or  at  a  fraudu- 
lent undervalue,  or  by  applying  the  real  value  to  the  purchase  of 
other  subjects  for  his  own  behoof,  or  in  extinguishing 
the  *  private  debt  of  the  executor  or  in  any  other  manner,  [*  112  ] 
contrary  to  the  duty  of  the  office  of  executor,  such  concert 
will  involve  the  seeming  purchaser,  or  his  pawnee,  and  make  him 
liable  for  the  full  value." 

Length  of  time  and  acquiescence,  as  in  the  principal  case,  will 
prevent  creditors  and  legatees  from  asserting  their  claims  against 
purchasers,  although  the  sale  by  the  executor  was  attended  with 
suspicious  circumstances  of  fraud,  and  h,  fortiori  against  mesne  pur- 
chasers: Bonney  v.  Ridgard,  4  Bro.  C.  C.  138,  cited  in  l^VLeod  v. 
Drummond,  17  Ves.  105;  S.  C,  1  Cox,  145. 

And  the  fact  of  the  legacies  being  contingent  will  be  no  sufficient 
excuse  for  the  legatees  lying  by  when  they  have  such  an  interest  as 
will  entitle  them  to  know  what  debts  the  testator  owed,  and  what  part 
of  his  estate  had  been  applied  in  payment  of  them:  Andrew  v. 
Wrigley,  4  Bro.  C.  C.  135;  Rolfe  v.  Gregory,  11  W.  R.  (V.-C.  K.) 
lOK);  4  De  G.  Jo.  &  Sm.  576. 

In  Mead  v.  Lord  Orrery,  3  Atk.  235,  Lord  Hardiaicke,  seems  to 
think  that  residuary  legatees  are  never  permitted  in  any  case  to 
question  the  disposition  which  the  executors  have  made  of  the  assets 
— that  creditors  or  specific  legatees  could  only  do  so.  However  in 
Hill  V.  Simpson,  7  Ves.  152,  Sir  William  Grant  decided  that  a  mere 
pecuniary  legatee, could  follow  the  assets  into  the  hands  of  a  third 
person.  In  WLeodx.  Drummond,  17  Ves.  169,  Lord  ii'ZdoH concurred 
in  the  principle  laid  down  by  Sir  William  Grant.  "I  cannot  con- 
ceive," said  his  Lordship,  "why  a  creditor  and  a  specific  legatee 
should  be  able  to  follow  the  assets,  and  not  a  pecuniary  or  residuary 
legatee." 

A  person  indebted  to  a  testator's  estate,  who  pays  a  third  party 
by  order  of  the  testator's  executor,  and  obtains  the  executor's  receipt, 
without  notice  that  the  payment  is  wrongfully  made,  will  ol)tain 
thereby  a  complete  discharge:  Ferrier  v.  Ferrier,  11  L.  R.  I.  56. 

Upon  the  same  principle  a  banker  will  not  be  liable  for  paying 
the  cheque  of  his  customer,  being  an  executor,  who  misapplies  the 
money,  unless  a  misapplication  thereof  was  intended  by  the  executor 
amounting  to  a  breach  of  trust  of  which  the  banker  was  cognisant, 
and  bv  which  he  derived  personally  a  profit.  See  Gray  v.  Johnston, 
3  L.  R.  Ho.  Lo.  1. 

179 


*  113  ELLIOT  V.  MERRYMAN. 

Suppose,  for  instance,  that  the  banker  becomes  incidentally  aware 
that  the. customer,  being  in  a  fiduciary  or  a  representative  capacity, 
meditates  a  breach  of  trust,  and  draws  a  cheque  for  that  purpose, 
the  banker,  not  being  interested  in  the  transaction,  has  no  right  to 
refuse  the  payment  of  the  cheque;  for  if  he  did  so  he  would  be 
making  himself  a  party  to  an  inquiry  as  between  his  customer  and 

third  persons.     lb.  p.  14 
[  *  113  ]      *  If ,  however,  an  executor  or  a  trustee  who  is  indebted  to  a 

banker,  or  to  another  person  having  the  legal  custody  of 
the  assets  of  a  trust  estate,  applied  a  portion  of  them  in  the  pay- 
ment of  his  own  debt  to  the  individual  having  that  custody,  as  the 
individual  receiving  the  debt  has  at  once  not  only  abundant  proof 
of  this  breach  of  trust,  but  participates  in  it  for  his  own  personal 
benefit,  he  will  be  compelled  to  make  restitution.  lb.  14;  and  see 
Pannell  v.  Hurley,  2  Coll.  241;  Bodenham  v.  Hoskyns,  2  De  G. 
Mac.  &  G.  903. 

[Doctrine  of  liability  of  purchaser  to  see  to  the  application  of 
the  pur  chase -vioney.     Restated. 

Under  the  general  doctrine  of  notice,  arises  the  rule  that  a  pur- 
chaser from  a  trustee  for  sale  must  see  to  the  application  of  the 
purchase-money. 

In  all  cases  where  land  is  sold  under  a  decree  of  the  Court  the 
purchaser  is  exonerated  from  all  liability  or  responsibility:  Coombs 
V.  Jordon,  3  Bland.  284;  Wilson  r.  Davison,  2  Rob.  (Va.)  385. 

If  a  purchaser  colludes  with  a  trustee  or  an  executor  he  will  be 
held  liable  for  a  misapplication  of  the  trust  money.  The  tendency 
of  the  American  Courts  is  not  to  adopt  the  doctrine  of  the  neces- 
sity of  the  purchaser  seeing  to  the  application  of  the  purchase- 
money  and  legislation  has  in  some  of  the  States  rather  strengthened 
this  view,  as  the  doctrine  is  harsh  and  causes  much  inconvenience.] 


180 


BERING  V.  EARL  OF  WINCHELSEA.  *  115 


*  BERING  V.  EARL  OF  WINCHELSEA.  [  *  114] 


In  the  Exchequer.     Feb.  Qth,  1787. 

[beported  1  cox,  318.] 

[>S.  a,  IB.  cfcP.  270.] 

Contribution  between  Co-sureties.] — Tlie  doctrine  of  contribution 
amongst  sureties  is  not  founded  in  contract,  but  is  the  residt  of 
general  equity,  on  the  gromid  of  equality  of  burthen  and  bene- 
fit. Therefore,  where  three  sureties  are  bound  by  different  instru- 
ments, but  for  the  same  principal  and  the  same  engagement,  they 
shall  contribute. 

Thomas  Dering,  Esq.,  having  been  appointed  collector  of  some  of 
the  duties  belonging  to  the  customs,  it  became  necessary,  upon 
such  appointment,  for  him  to  enter  into  bonds  to  the  Grown  with 
three  securities  for  the  due  performance  of  this  office.  Sir  Edward 
Dering  his  brother,  the  Earl  of  Winchelsea,  and  Sir  John  Rous 
having  agreed  to  become  sureties  for  him,  a  joint  and  several  bond 
was  executed  by  Thomas  Dering  and  Sir  Edward  Dering  to  the 
Crown  in  penalty  of  4000/.;  another  joint  and  several  bond  by 
Thomas  Dering  and  the  Earl  of  Winchelsea,  and  a  third  by  Thomas 
Dering  and  Sir  John  Rous,  in  the  same  penalty  of  4000Z. ;  all  con- 
ditioned alike  for  the  due  performance  of  Thomas  Dering's  duty 
as  collector.  Mr.  Dering  being  in  arrear  to  the  Crown  to  the 
amount  of  3883Z.  14s.,  the  Crown  put  the  first  bond  in  suit  against 
Sir  Edward  Dering,  and  judgment  was  obtained  thereon  for  that 
sum;  whereupon  Sir  Edward  filed  this  bill  against  the  Earl  of  Win- 
chelsea and  Sir  John  Rous,  claiming  from  them  a  contribution  to- 
wards the  sum  so  recovered  against  him. 

The  cause  had  been  argued  at  length  in  Blichaehnas  Term  last, 
and  now  stood  for  judgment. 

Lord  Chief  Baron  Eyre. — This  bill  is  brought  by  *  one   [  *  115  J 
surety  against  his  two  co-sureties,  under  the  circumstances 
(above  mentioned).     Mr.    Dering's   appointment,  the   three  bonds, 

181 


*  116  BERING  V.  EARL  OF  WINCHELSEA. 

and  the  judgment  against  the  plaintiff,  are  in  proof  in  the  cause; 
the  original  balance  due,  and  the  present  state  of  it,  are  admitted. 

The  demand  is  resisted  on  two  grounds:  first,  that  there  is  no 
foundation  for  the  demand  in  the  nature  of  the  contract;  and, 
secondly,  that  the  conduct  of  Sir  Edward  Dering  has  been  such  as 
to  disable  him  from  claiming  the  benefit  of  the  contract,  though  it 
did  otherwise  exist.  There  is  also  a  formal  objection,  which  I  shall 
take  notice  of  hereafter. 

I  shall  consider  the  second  ground  of  objection  first,  in  order  to 
lay  it  out  of  the  case.  The  misconduct  imputed  to  Sir  Edward  is, 
that  he  encouraged  his  brother  in  gaming  and  other  irregulari- 
ties; that  he  knew  his  brother  had  no  fortune  of  his  own,  and  must 
necessarily  be  making  use  of  the  public  money;  and  that  Sir  Ed- 
ward was  privy  to  his  brother's  breaking  the  orders  of  the  Lords  of 
the  Treasury,  to  keep  the  money  in  a  particular  box  and  in  a  par- 
ticular manner,  &c.  This  may  all  be  true,  and  such  a  representa- 
tion of  Sir  Edward's  conduct  certainly  places  him  in  a  bad  point  of 
view;  and  perhaps  it  is  not  a  very  decorous  proceeding  in  Sir  Ed- 
ward to  come  into  this  court  under  these  circumstances.  He  might 
possibly  have  involved  his  brother  in  some  measure,  but  yet  it  is 
not  made  out  to  the  satisfaction  of  the  Court  that  these  facts  will 
constitute  a  defence.  It  is  argued  that  the  author  of  the  loss  shall 
not  have  the  benefit  of  a  contribution;  but  no  cases  have  been  cited 
to  this  point,  nor  any  principle  which  applies  to  this  case.  It  is 
not  laying  down  any  principle  to  say,  that  his  ill  conduct  disables 
him  from  having  any  relief  in  this  court.  If  this  can  be  founded 
on  any  principle,  it  must  be  that  a  man  must  come  into  a  court  of 
equity  with  clean  hands:  but  when  this  is  said  it  does  not  mean  a 
general  depravity;  it  must  have  an  immediate  and  necessary  re- 
lation to  the  equity  sued  for;  it  must  be  a  depravity  in 
[  *  116  ]  a  legal  as  well  as  in  a  moral  sense.  In  a  *  moral  sense, 
the  companion,  and  perhaps,  the  conductor  of  Mr.  Dering, 
may  be  said  to  be  the  author  of  the  loss,  but,  to  legal  purposes, 
Mr.  Dering  himself  is  the  author  of  it;  and  if  the  evil  example  of 
Sir  Edward  led  him  on,  this  is  not  what  the  Court  can  take  cog- 
nizance of.  Cases,  indeed,  might  be  put,  in  which  the  proposition 
would  be  true.  If  a  contribution  were  demanded  from  a  ship  and 
cargo  for  goods  thi'own  overboard  to  save  the  ship,  if  the  plaintiff 
had  actually  bored  a  hole  in  the  ship,  he  would  in  that  case  be  cer- 
tainly the  author  of  the  loss,  and  would  not  be  entitled  to  any  con- 
182 


BERING  V.  EARL  OF  WINCIIELSEA.  *  117 

tribution.     But  speaking  of  the  author  of  the  loss  is  a  mere  figure 
of  speech,  as  afiplied  to  Sir  Edward  Dering  in  this  case. 

The  real  point  is,  whether  a  contribution  can  be  demanded  be- 
tween the  obligors  of  distinct  and  separate  obligations  under  the 
circumstances  of  this  case.  It  is  admitted  that,  if  there  had  been 
only  one  bond  in  which  the  three  sureties  had  joined  for  12,000/., 
there  must  have  been  a  contribution  amongst  them  to  the  extent  of 
any  loss  sustained:  but  it  is  said,  that  that  case  proceeds  on  the 
contract  and  privity  subsisting  amongst  the  sureties,  which  this 
case  excludes;  that  this  case  admits  of  the  supposition  that  the  three 
sureties  are  perfect  strangers  to  each  other,  and  each  of  them  might 
be  ignorant  of  the  other  sureties,  and  that  it  would  be  strange  to 
imply  any  contract  as  amongst  the  sureties  in  this  situation;  that 
these  are  perfectly  distinct  undertakings  without  connexion  with 
each  other,  and  it  is  added,  that  the  contribution  can  never  be  eodem 
mode  as  in  the  three  joining  in  one  bond  for  12,000/.;  for  there,  if 
one  of  them  become  insolvent,  the  two  others  would  be  liable  to 
contribute  in  moieties  to  the  amount  of  6000/.  Qach,  whereas  here  it 
is  impossible  to  make  them  contribute  beyond  the  penalty  of  the 
bond.  Mr.  Madocks  has  stated  what  is  decisive,  if  true,  that  nobody 
is  liable  to  contribute  who  does  not  appear  on  the  face  of  the  bond. 
If  this  means  only  that  there  is  no  contract,  then  it  comes  back  to 
the  question  whether  the  right  of  contribution  is  founded  on  the 
contract. 

*  If  we  take  a  view  of  the  cases,  both  in  law  and  equity,  [  *  117  ] 
we  shall  find  that  contribution  is  bottomed  and  fixed  on 
general  2yrinciples  of  justice,  and  does  not  spring  from  contract; 
though  contract  may  qualify  it,  as  in  Swain  v.  Wall,  1  Ch.  Rep.  149. 
In  the  register,  176  b.  there  are  two  writs  of  contribution — one 
inter  co-haeredes,  the  other  inter  co  feoffatos;  these  are  founded  on 
the  Statute  of  Marlbridge.  The  great  object  of  the  statute  is,  to 
protect  the  inheritance  from  more  suits  than  are  necessary.  Though 
contribution  is  a  part  of  the  provision  of  the  statute,  yet  in  Fitzh. 
N.  B.  338,  there  is  a  writ  of  contribution  at  common  law  amongst 
tenants  in  common,  as  for  a  mill  falling  to  decay  (6).  In  the  same 
page,  Fitzherbert  takes  notice  of  contribution  between  co-heirs  and 
co-feoffees;  and  as  between  co-feofifees,  he  supposes  there  shall  be 
no  contribution  without  an  agreement,  and  the  words  of  the  writ 

(b)  Sed  vide  Leigh  v.  Dickeson,  12  Q.  B.  D.  194,  198. 

183 


*  118  DERING  V.  EARL  OF  WINCHELSEA. 

countenance  such  an  idea,  for  the  words  are  "ex  eorum  assensu;" 
and  yet  this  seems  to  contravene  the  express  provision  of  the 
statute.  As  to  co-heirs,  the  statute  is  express;  it  does  not  say  so  , 
as  to  feoffees,  but  gives  contribution  in  the  same  manner.  In  Sir 
William  Harberfs  case,  3  Co.  lib,  many  cases  of  contribution  are 
put;  and  the  reason  given  in  the  books  is,  that  in  sequali  jure  the 
law  requires  equality:  one  shall  not  bear  the  burthen  in  ease  of  the 
rest;  and  the  law  is  grounded  in  great  equity.  Contract  is  never 
mentioned.  Now,  the  doctrine  of  equality  operates  more  effectu- 
ally in  this  court  than  in  a  court  of  law.  The  difficulty  in  Coke's 
Cases  was,  how  to  make  them  contribute;  they  were  put  to  their 
audita  querela,  or  scire  facias.  In  equity  there  is  a  string  of  cases, 
in  1  Eq.  Ca.  Ab.  tit.  "Contribution  and  Average."  Another  case 
occurs  in  Hargr.  Law  Tracts  (c),  on  the  right  of  the  King  on  the 
prisage  of  wine^  The  King  is  entitled  to  one  ton  before  the  mast, 
and  one  ton  behind;  and  in  that  case  a  right  of  contribution  ac- 
crues, for  the  King  may  take  by  his  prerogative  any  two  tons  of 
wine  he  thinks  tit,  by  which  one  man  might  suffer  solely.  But  the 
contribution  is  given  of  course  on  general  principles,  which  govern 

all  these  cases. 
[  *  118  ]  *  Now,  to  come  to  the  particular  case  of  sureties.  It  is 
clear  that  one  surety  may  compel  a  contribution  from  an- 
other towards  payment  of  a  debt  for  which  they  are  jointly  bound. 
On  what  principle  ?  Can  it  be  necessary  to  resort  to  the  circum- 
stance of  a  joint  bond  ?  "What  if  they  are  jointly  and  severally 
bound  ?  What  difference  will  it  make  if  they  are  severally  bound, 
and  by  different  instruments,  but  for  the  same  principal,  and  the 
name  engagement?  In  all  these  cases  the  sureties  have  a  common 
interest  and  a  common  burthen;  they  are  joined  by  the  common 
end  and  purpose  of  their  several  obligations  as  much  as  if  they 
were  joined  in  one  instrument,  with  this  difference  only,  that  the 
penalties  \yill  ascertain  the  proportion  in  which  they  are  to  con- 
tribute; whereas  if  they  had  joined  in  one  bond,  it  must  have  de- 
pended on  other  circumstances. 

In  this  case,  the  three  sureties  are  all  bound  that  Mr.  Dering 
shall  account  for  the  moneys  he  receives.  This  is  a  common 
burthen.  All  the  bonds  are  forfeited  at  law  and  in  this  court,  as 
far  as  the  balance  due.     The  balance  might  have  been  so  great  as 

(c)  P.  120. 
184 


DERING  V.  EARL  OF  WINCHELSEA.  *  119 

to  Lave  exhausted  all  the  penalties,  and  then  the  obligee  forces  them 
all  to  pay;  but  here  the  balance  is  something  less  than  one  of  the 
penalties.  Now,  who  ought  to  pay  this?  The  one  wha  is  sued 
must  pay  it  to  the  Crown,  as  in  the  case  of  prisage;  but,  as  between 
themselves,  there  shall  be  a  contribution,  for  they  are  in  sequali 
jure.  This  principle  is  carried  a  great  way  where  they  are  joined 
in  one  obligation;  for  if  one  should  pay  the  whole  12,000Z.,  and  the 
second  were  insolvent,  the  third  shall  contribute  a  moiety,  though 
he  certainly  never  meant  to  be  liable  for  more  than  a  third.  This 
circumstance,  and  the  possibility  of  one  being  liable  for  the  whole 
if  the  other  two  should  prove  insolvent,  suggested  the  mode  of  en- 
tering into  separate  bonds;  but  this  does  not  vary  the  reason  for 
contribution,  for  there  is  the  same  principal  and  the  same  engage- 
ment; all  are  equally  liable  to  the  obligee  to  the  extent  of  the  pen- 
alty of  the  bonds  when  they  are  not  all  exhausted.  If,  in  the 
common  case  of  a  joint  bond,  no  distinction  is  to  be 
*made,  why  shall  not  the  same  rule  govern  here?  As  in  [  *  119  ] 
the  case  of  average  of  cargo  in  a  court  of  law,  qui  sentit 
commodum  sentire  debet  et  onus.  This  principle  has  a  direct  appli- 
cation here;  for  the  charging  one  surety  discharges  the  other,^nd  each 
therefore  ought  to  contribute  to  the  onus.  In  questions  of  average, 
there  is  no  contract  or  privity  in  ordinary  cases;  but  it  is  the  result 
of  general  justice,  from  the  equality  of  burthen  and  benefit.  Then 
there  is  no  ditficulty  or  absurdity  in  making  a  contribution  take 
place  in  this  case,  if  not  founded  on  contract,  nor  any  difficulty  in 
adjusting  the  proportions  in  which  they  are  to  contribute,  for  the 
penalties  will  necessarily  determine  this. 

The  objection  in  point  of  form,  which  I  before  mentioned,  is,  that 
the  bill  cannot  be  sustained,  inasmuch  as  it  has  not  charged  the  in- 
solvency of  the  principal  debtor,  and  that  such  a  charge  is  abso- 
lutely necessary.  As  a  question  of  form  it  ought  to  have  been 
brought  on  by  demurrer;  but,  in  substance,  the  insolvency  of  IVIr. 
Dering  may  be  collected  from  the  whole  proceedings,  which  strongly 
imply  it;  for  the  plaintiflP  appears  to  have  submitted  to  the  judg- 
ment, and  the  defendants  have  made  their  defence  on  other  grounds. 

On  the  whole,  therefore,  we  think  the  plaintifp  is  entitled  to  the 
relief  he  prays,  and  declare  that  the  balance  due  from  Thomas 
Dering  being  admitted  on  all  hands  to  amount  to  the  sum  of 
3883/.  ]4s.  8hd.,  the  plaintiff.  Sir  Edward  Dering,  and  the  two  de- 
fendants, the  Earl  of  ^Vinchelsea  and  Sir  John  Rous,  ought  to  con- 

185 


*  120  DERING  V.  EARL  OF  WINCHELSEA. 

tribute  in  equal  shares  to  the  payment  of  that  sum,  and  direct  that 
the  plaintiff  and  defendants  do  pay  in  discharge  thereof,  each  of 
them,  the  sum  of  1294L  lis.  Id.;  and  that  on  payment  thereof,  the 
Attorney -General  shall  acknowledge  satisfaction  on  the  record  of 
the  said  judgment,  and  that  the  two  bonds  entered  into  by  the  Earl 
of  Winchelsea  and  Sir  John  Rous  be  delivered  up  to  them  respec- 
tively. But  this  not  being  a  very  favourable  case  to  the  plaintiff, 
and  the  equity  he  asks  being  doubtful,  we  do  not  think  it  a  case  for 
costs. 


[  *  120  ]  ^Contribution  Between  Sureties. — "  The  principle,"  ob- 
served Lord  Redesdale,  "established  in  the  case  of  Bering  \. 
Lord  Winchelsea,  is  universal,  that  the  right  and  duty  of  contribu- 
tion is  founded  in  doctrines  of  equity ;  it  does  not  depend  upon 
contract.  ['"  The  equity  for  contribution  arises  when  one  of  sev- 
eral parties  who  are  liable  to  a  common  debt  or  obligation  dis- 
charges the  same  for  the  benefit  of  all:"  Bispham's  Eq.  (4th  Ed.) 
328. 

AVhere  there  are  two  or  more  sureties  and  one  of  them  pays,  the 
debt  due  to  all  of  the  sureties,  he  who  pays  the  debt  has  the 
right  to  recover  from  each  of  his  co-sureties  his  proportionate  part 
of  the  amount  paid,  he  has  the  right  to  enforce  contribution.  The 
right  is  asserted  through  the  medium  of  a  bill  in  equity  and  is 
founded  not  on  contract  but  on  the  principles  of  justice  above  stated: 
Allen  V.  Wood,  3  Iredell,  386;  Winckle  v.  Johnson,  11  Oregon,  469; 
Strong  V.  Mitchell,  19  Vt.  644;  Campbell  r.  Mesier,  4  Johns.  Ch. 
334;  McKenna  v.  George,  2  Rich.  Eq.  15;  Breckenridge  v.  Taylor, 
5  Dana,  110.]  If  several  persons  are  indebted,  and  one  makes  the 
payment,  the  creditor  is  bound  in  conscience,  if  not  by  contract,  to 
give  to  the  party  paying  the  debt  all  his  remedies  against  the  other 
debtors.  The  cases  of  average  in  equity  rest  upon  the  same  prin- 
ciple. It  would  be  against  equity  for  the  creditor  to  exact  or  re- 
ceive payment  from  one,  and  to  permit,  or  by  his  conduct  to  cause, 
the  other  debtors  to  be  exempt  from  payment.  He  is  bound,  sel- 
dom by  contract,  but  always  in  conscience,  as  far  as  he  is  able,  to 
put  the  party  paying  the  debt,  upon  the  same  footing  with  those 
who  are  equally  bound.  That  was  the  principle  of  the  decision  in 
Dering  v.  Lord  Winchelsea ;  and  in  that  case  there  was  no  evidence  of 
contract :"  Stirling  v.  Forrester,  3  Bligh,  59.  See  also  Craythorne 
v.  Sicinburne,  14  Ves.  160,  165, 169;  Hartly  v.  O' Flaherty,  1  Beat. 
77,  78;  Ware  v.  Honvood,  14  Ves.  31;  Mayhew  v.  Crickett,  and 
note,  2  Swanst.  189,  192;  Spottiswood's  Case,  6  De  G.  Mac.  &  G. 
345,  371,  375;  Whiting  v.  Burke,  10  L.  R.  Eq.  539;  6  L  R.  Ch. 
App.  342;  In  re  MacDonaghs,  Minors,  10  I.  R.  Eq.  269;  In  re 
186 


DERING  IJ.  EARL  OF  WINCHELSEA.  *121 

Arcedeckne,  Atkins  v.  Arcedeckne,  24  Ch.  D.  714;  Ward  v.  National 
Bank  of  New  Zealand,  8  App.  Ca.  <05;  liamskill  v.  Edwards,  31 
Ch.  D.  100,  109,  where  the  doctrine  laid  down  in  Bering  v.  Lord 
Winchelsea  has  been  recognized  and  approved  of.  [The  doctrine 
of  contribution  is  not  so  much  founded  on  contract,  as  on  the  prin- 
ciple of  equity  and  justice,  that  where  the  interest  is  common  the 
burden  also  shall  be  common:  Russell  v.  Failer,  1  Ohio  (N.  S.), 
327;  White  v.  Banks,  21  Ala.  705;  Campbell  t'.   Meiser,  4  Johns. 

C.  K  834,  and  Brett's  Lead.  Cas.  in  Mod.  Eq.  390  (Text  Book 
Series).] 

The  right  of  the  surety  to  such  contribution  from  his  co-sureties, 
arises  upon  payment,either  voluntarily,  or  under  proceedings  against 
him  by  the  creditor,  of  the  amount  due  to  the  creditor  by  the  prin- 
cipal debtor  and  for  which  the  surety  rendered  himself  liable  by  his 
guarantee.  [At  law  the  co-surety  was  compelled  only  to  contri- 
bute his  pro  rata  proportion,  having  regard  to  the  whole  number  of 
sureties,  -without  reference  to  the  fact  that  some  of  the  sureties 
might  be  insolvent.  But  in  equity  the  burden  of  the  debt  is  di- 
vided among  the  solvent  sureties,  and  the  party  paying,  can  recover 
from  each  of  the  others  his  proportionate  part  of  the  contribution; 
thus,  where  the  plaintiff  was  one  of  four  sureties  on  a  note,  being 
compelled  to  pay,  he  brought  suit  against,  his  colleagues  and  re- 
covered a  judgment  against  each,  for  one-fom-th  of  the  entire  amount 
of  the  cost,  interest  and  principle,  but  not  for  an  attorney's  fee 
which  was  provided  for  on  the  face  of  the  note,  as  he  was  not  com- 
pelled to  pay  it:  American  Note  4  to  Steel  v.  Dixon,  Brett's  Lead. 
Cas.  Mod.  Eq.  388  (Text  Book  Series),  and  see  Henderson  v.  Mc- 
dufiee,  5  H.  E.;  Morrison  r.  Poyntz,  7  Dana,  307;  Stothoff  v.  Dun- 
ham, 19  N.  J.  L.  182.  A  judgment,  however  (Douglass  v.  How- 
laad,   24  Wendall,   35),  or    an    award   (Ex  jJarte   Young,  17    Ch. 

D.  668),  against  the  debtor  is  not,  in  the  absence  of  a  special  agree- 
ment, binding  on  the  surety,  and  is  not  evidence  against  him  in  an 
action  by  the  creditor  (Douglass  v.  Howland,  24  Wendall,  35;)  and 
upon  the  bankruptcy  of  the  surety  the  creditor  cannot  prove  for  the 
amount  of  the  award,  but  must  show  by  the  usual  evidence,  to  the 
Bankruptcy  Court,  the  amount  at  which  his  proof  ought  to  stand: 
Ex  parte  Young,  17  Ch.  D.  674. 

And  it  is  immaterial  that  the  transaction  giving  rise  to  the  lia- 
bility is  one  which,  with  reference  to  the  parties  Who  entered  into 
it,  was  ultra  vires.  Thus  where  shares  of  a  company  were  (pur- 
suant to  a  resolution  of  the  Board  ultravires)  pui'chased  and  trans- 
ferred into  the  name  of  A.,  a  director,  in  trust  for  the  com- 
*  pany,  and  A.  afterwards  paid  calls  in  respect  thereof,  it  [  *  121  ] 
was  held  by  Bacon,  V.-C,  that  he  was  entitled  to  con- 
tribution from  the  directors  who  concurred  in  the  transaction. 
Ashnrst  v.  Mason,  20  L.  R.  Eq.  225. 

Courts  of  common  law,  in  modern  times,  assumed  a  jurisdiction 
to  compel  contribution  between  sureties,  in  the  absence  of  positive 

187 


*  122  BERING  V.  EARL  OF  WINCHELSEA. 

contract,  on  tlie  ground  of  implied  assumpsit;  inasmuch  as  the 
principle  of  contribution  being  in  its  operation  established,  a  con- 
tract might  be  inferred,  upon  the  implied  knowledge  of  that  prin- 
ciple by  all  persons.  This  jurisdiction  was  convenient  enough,  in  a 
case  simple  and  uncomplicated,  but  attended  with  great  ditficulty 
where  the  sureties  were  numerous;  especially  since  it  was  held,  that 
separate  actions  might  be  brought  against  the  different  sureties  for 
their  respective  quotas  and  proportions.  It  was  easy  to  foresee  the 
multiplicity  of  suits  to  which  that  led:  Craythorne  v.  Swinburne,  14 
Yes.  164;  Coivell  v.  Edwards,  2  B.  &  P.  268;  see  also  1  Saund.  R, 
264,  n.  (a),  William's  note  (b). 

In  other  respects,  as  will  be  hereafter  seen,  the  jurisdiction  at 
common  law  was  much  more  confined  and  less  beneficial  than  in. 
equity.  Thus,  where  there  were  several  sureties,  and  one  became 
insolvent,  the  surety  who  paid  the  entire  debt  could  in  equity  com- 
pel the  solvent  sureties  to  contribute  towards  payment  of  the  entire 
debt.  (Peter  \.  Rich,  1  Ch.  Rep.  34;  Hole  v.  Ilarrison,  V  Ch.  Ca. 
246;  S.  C.  Finch,  Rep.  15,203;  Hitchman  v.  Stewart,  3  Drew.  271; 
2  Set  on  Decrees,  1182,  4th  Ed.,  and  see  The  Mayor  of  Bencick  v. 
Murray,  25  L.  J.  N.  S.  (Ch.)  201;  7  De  G.  Mac.  &  G.  497);  but  at 
law  he  could  recover  no  more  than  an  aliquot  part  of  the  whole,  re- 
gard being  had  to  the  number  of  co-securities:  Coivell  v.  Edivards, 
2  B.  &  P.  268;  Broivne  v.  Lee,  6  B.  &  C.  697;  S.  C,  9  D.  &  R.  700. 
See  also  Rogers  v.  Mackenzie,  4  Ves.  752;  Wright  v.  Hunter,  5  Ves. 
927;  Batard  v.  Hawes,  2  E.  &  B.  287.  [In  Equity'  the  burden  of 
the  debt  is  divided  among  the  solvent  sureties  and  the  party  paying 
I'ecovers  from  each  of  the  other  sureties  an  amount  dependent  upon 
the  number  of  those  who  are  actually  able  to  pay.  McKenna  v. 
George,  2  Rich.  Eq.  15;  Breckenridge  v.  Taylor,  5  Dana,  110.]  So, 
also,  if  one  of  the  sureties  died,  in  equity  contribution  could  be  en- 
forced as  against  his  representatives;  but  at  law  an  action  lay  only 
against  the  surviving  sureties:  Primrose  v.  Bromley,  1  Atk.  90; 
Batard  v.  Haices,  2  E.  &  B.  287. 

It  may  here  be  observed  that  in  all  cases  of  contribution,  the 
jurisdiction  assumed  by  courts  of  law  did  not  affect  the  original 
jurisdiction  of  courts  of  equity  {Wright  v.  Hunter,  5  Ves.  794);  and 
now  under  the  Judicature  Act,  1873  (36  &  37  Vict.  c.  66),  sect.  25, 
subsect.  11,  where  there  is  any  conflict  and  variance  between  the 
rules  of  law  and  equity  with  reference  to  the  same  matter,  the  rules 
of  equity  will  prevail. 

It  is  clear,  as  laid  down  by  the  Lord  Chief  Baron,  in 
[  *  122  ]  Bering  v.  *  The  Earl  of  Winchelsea,  that  a  surety  may  com- 
pel contribution  from  another  for  payment  of  a  debt 
for  which  they  are  jointly  or  severally,  or  jointly  and  severally, 
bound  V)y  the  same  instrument:  Fleetivood  v.  Charnock,  Nels.  10; 
Underhill  v.  Horwood,  10  Ves.  226;  Craythorne  v.  Swinburne,  14 
Ves.  164. 

It  was,  however,  decided,  for  the  first  time  in  Bering  v.  The  Earl 
188 


BERING  V.  EARL  OF  WTNCHELSEA.  *122 

of  Winchelsea  that  there  is  no  difFerpnce  whether  the  parties  are 
bound  in  the  same  or  by  different  iustrumentH,  provided  they  are 
co-securities  for  the  sam«  princi[)al  and  in  the  same  engagement. 
[The  sureties  may  be  bound  at  different  times,  or  by  different  instru- 
ments, but  this  does  not  affect  the  right  of  contribution;  provided, 
they  in  reality  occupy  the  position  of  co-sureties:  Warner  v. 
Price,  3  Wend.  397;  Stout  v.  Vance,  1  Kobinson  (Va).,  109;  Arm- 
itage  V.  Pulver,  37  N.  Y.  494;  Bell  v.  Jasper,  2  Iredell,  597. 
If,  however,  each  suretyship  is  a  separate  and  distinct  trans- 
action, the  right  of  contribution  will  not  exist:  Langford  v. 
Perrin,  5   Leigh,    552;  Moore    v.   Isley,  2  Dev.  &  Bat.  Eq.    372.] 

And,  further,  that  there  is  no  difference  if  they  are  bound  in  dif- 
ferent sums,  except  that  contribution  could  not  be  required  beyond 
the  sum  for  which  they  had  become  bottnd  (see  Craythorne  v.  Swin- 
burne, 14  Ves.  169;  Ware  v.  Horivood,  14  Ves.  31;  Mayhew  v. 
Crickett,  2  Swanst.  192;  Stirling  v.  Forrester,  3  Bligh,  596),  each 
surety  being  ordinarily  bound  to  contribute  his  proportionate  part. 
In  re  MacDonayhs,  Minors,  10  I.  E.  Eq.  269. 

And  it  seems  that  the  right  of  a  surety  to  enforce  contribution 
against  co-sureties  will  not  be  affected  by  his  ignorance  at  the  time 
he  became  surety  that  they  were  also  co-sureties:  Craythorne  v. 
Swinburne,  14  Ves.  163,  165. 

Where,  however,  sureties  are  bound  by  different  instruments  for 
distinct  portions  of  a  debt  due  from  the  same  principal,  if  the 
suretyship  of  eacji  is  a  sej^arate  and  distinct  transaction,  the  doctrine 
laid  down  in  Dering  v.  Lord  Winchelsea  will  not  apply,  and  there 
will  be  no  right  of  contribution  among  the  sureties:  Coox)e  v.  Twy- 
nam,  1  T.  &  K.  426;  Pendlebury  v.  Walker,  4  Y.  &  C.  429;  Arce- 
deckne  v.  Lord  Hoivard,  27  L.  T.  Rep.  (N.  S.)  194,  20  W.  11.  879,  re- 
versing the  decision  of  Sir  R.  Malins,  reported  20  W.  R.  571. 

Nor  would  there  be  any  right  to  contribution  among  sureties, 
bound  by  the  same  instrument,  if  they  were  only  liable  for  distinct 
portions  of  a  debt  from  the  same  principal,  for  which  none  of  them 
were  liable  in  the  aggregate.  Suppose,  for  instance,  the  principal 
under  a  bond  was  bound  to  the  creditor  in  1000?,  and  four  sure- 
ties became  thereby  guarantees  for  the  payment,  not  of  the  whole 
lOOOZ.,  jointly  and  severally  with  the  others,  but  each  guaranteed 
severally  250Z.  parcel  of  the  lOOOZ.  Then  the  creditor  could  only 
apply  to  each  surety  for  payment  of  the  250Z.,  or  such  proportion  of 
it  as'remained  due  after  any  payment  by  the  principal,  and  there 
could  be  no  contribution  between  the  sureties,  because  they  were 
not  liable  for  the  same  debt.  See  Ellis  v.  Emanuel,  1  Ex.  D.  162, 
case  put  and  observations  of  Blackburn,  J.  [If  the  sureties  are  not 
bound  for  the  same  thing  and  do  not  occupy  the  position  of  co- 
sureties, then,  the  surety  paying  the  debt  cannot  enforce  con- 
tribution, (2)  a  subsequent  surety  may  have  no  right  as  against 
the  first,  (3)  the  surety  first  in  point  of  time  may  have  no  remedy 
against  one  who  is  subsequent.     As  to  (1)  see  Longlev  v.  Griggs, 

189 


*  123  DERING  V.  EARL  OF  WINCUELSEA. 

10  Pick.  121;  (2)  Burns  t;.  The  Huntingdon  Bank,  1  B.  &  W.  395; 
Scbaitzell's  Appeal,  13  Wright  (Pa.)  23:  Douglass  r.  Fagg,  8 
Leigh,'  588;  (3)  Harris  v.  Warner,  13  Wend.  400;  Thompsons. 
Sanders,  4  Dev.  &  Bat.  Eq.  404.] 

Although  the  liabilities  of  successive  indorsers  of  a  bill 
[  *  123  ]  or  note  must,  in  the  absence  of  all  evidence  *  to  the  con- 
trary, be  determined  according  to  the  ordinary  principles 
of  law  merchant,  whereby  a  prior  indorser  must  indemnify  a  subse- 
quent one;  if,  however,  it  appear  from  the  evidence  that  the  parties 
made  the  indorsements  pursuant  to  a  mutual  agreement  to  be  co- 
sureties, they  will  be  entitled  and  liable  to  equal  contributions  inter 
se,  and  are  not  liable  to  indemnify  each  other  successively  according 
to  the  priority  of  their  indorsements:  Macdonald  v.  Whitfield,  8 
App.  Cas.  733,  744,  745;  Reynolds  v.  Wheeler,  IOC.  B.  (N.  S.)  561. 

The  right  of  a  surety  to  claim  contribution  from  a  co-surety 
arises  when  the  surety  has  paid  either  the  whole  or  more  than  a 
just  proportion  of  the  debt  for  which  they  are  liable  to  the  princi- 
pal creditor  (Davies  v.  Hmnphreys,Q  M.  &  W.  153,  168;  Hitchman 
v.  Stewart,  3  Drew.  271;  Lawson  v.  Wright,  1  Cox,  275),  and  until 
he  has  done  so  he  cannot  claim  contribution,  even  though  the  co- 
surety has  not  been  required  by  the  creditor  to  pay  anything,  pro- 
vided that  the  co-surety  has  not  been  released  by  the  creditor: 
Ex  jMrte  Snowdon,  17  Ch.  D.  44.  [Glass  r.  Pullen,  6  Bush,  346; 
W^ood  V.  Leland,  1  Met.  387.] 

A  surety  who  has  been  compelled  to  pay  the  debt,  may  in  the 
same  action  sue  the  principal  debtor  for  repayment  and  the  co-sure- 
ties for  contribution.  And  in  an  action  for  contribution  to  which 
the  principal  debtor  is  a  party,  the  principal  debtor  will  be  ordered 
to  pay  not  only  the  amount  which  a  co-surety  has  been  ordered  to 
pay  by  way  of  contribution  to  the  surety  who  has  paid  the  creditor, 
but  also  the  amount  due  to  the  surety  not  satisfied  by  such  contri- 
bution: Laivson  v.  Wright,  1  Cox,  275;  Hitchman  v.  Steivart,  3 
Drew.  271;  Greerside  v.  Benson,  3  Atk.  253  n.;  Walker  x.  Presicick, 
2  Ves.  622;  Belt's  Supp.  427,  428;  2  Seton  Decrees,  1181,  4th  Ed. 
[A  surety  is  not  allowed  to  speculate  on  the  debt,  and  if  he  com- 
promises the  claim  in  any  way,  his  co-sureties  are  entitled  to  the 
benefit  of  such  compromise.  The  co-sureties  are  liable  only  for 
the  proportionate  part  of  the  amount  actually  paid  with  interest. 
Hickman  v.  McCurdy,  7  J.  J.  Marsh,  555;  Swan's  Estate,  4  Iredell, 
209;  Bonney  v.  Selly,  2  Wend.  481;  Wynn  v.  Brooks,  5 Eawle,  106; 
Lawrence  v.  Blow,  2  Leigh,  30.] 

The  surety,  moreover,  has  the  right  (although  it  appears  in  prac- 
tice to  be  rarely  exercised)  at  any  time  to  apply  to  the  creditor  and 
pay  him  off,  and  then  (on  giving  a  proper  indemnity  for  costs)  to 
sue  the  principal  debtor  in  the  creditor's  name:  per  Cockburn,C. 
J.,  in  Swire  v.  Redman,  1  Q.  B.  541. 

A  surety  will  in  equity  be  entitled  to  interest  from  the  principal 
debtor  and  his  co-sureties  for  the  money  which  he  has  paid:  Laiv- 
190 


BERING  V.  EARL  OF  WINCUELSEA.  *  124 

sonv.  Wright,!  Cox,  275,  277;  2  Seton  Decrees,  1181,  4th  Ed; 
Hitchman  v.  Stewart,  3  Drew.  271;  Swain  v.  Wall,  1  Ch.  Rep.  149; 
Petre  v.  Duncombe,  15  Jur.  80.  See,  however,  Onge  v.  Truclock,  2 
Moll.  31,  42;  Bell  v.  Free,  1  Swaast.  90;  Rigby  v.  AVNamara,  2  Cox, 
415. 

And  it  has  been  held  in  Ireland,  overruling  the  cases  of  Onge  v. 
Truelock,  2  Moll.  42,  and  Salkeld  v.  Abbott,  Hayes  and  Jones,  110, 
that  where  one  of.  two  sureties  had  paid  the  full  amount 
of  a  receiver's  *  recognizance,  he  was  entitled  to  use  the  [  *  124  ] 
recognizance  for  the  purpose  of  recovering  out  of  the  es- 
tate of  his  co-surety,  not  only  one-half  of  the  sum  so  paid  by  him, 
but  also  interest  thereon  from  the  date  of  payment:  In  re  Swan''s 
Estate,  4  Ir.  Eq.  2u9. 

It  has  also  been  held  that  a  surety  is  not  entitled  to  interest  as 
against  the  estate  of  a  deceased  principal,  but  where  a  fund  as- 
signed as  a  further  security  had  made  interest,  he  was  allowed  in- 
terest therefrom:   Cauljield  v.  Maguire,  2  J.  &  L.  164. 

Although  the  principle  of  contribution  is  not  founded  upon  con- 
tract, still  a  person  may  by  contract  qualify,  or  take  himself  out  of 
the  reach  of,  the  principle  or  the  implied  contract.  Thus,  where 
three  persons  became  bound  for  the  principal  debtor  in  an  obliga- 
tion, and  agreed  among  themselves  that,  if  the  principal  debtor 
failed  to  pay  the  debt,  they  would  pay  their  respective  parts;  two 
became  insolvent,  and  the  third  paid  the  money;  and  one  of  the  in- 
solvent sureties  afterwards  becoming  solvent,  he  was  held  liable  to 
contribute  one  third  only:  Swain  v.  Wall,  1  Ch.  Rep.  149;  see  also 
Craijthorne  v.  Swinburne,  14  Ves.  165;  Coope  v.  Ticynam,  1  T.  &  R. 
426;  Collins  v.  Prosser,  1  B.  &  C.  682;  Armstrong  v.  Cahill  6  L.  R. 
I.  440.  [The  various  liabilities  of  sureties  frequently  depends 
upon  the  express  understanding  of  the  parties  to  the  transaction, 
and  oral  testimony  is  generally  admissible  to  show  what  the  under- 
standing was:  Hendrick  v.  Whittemore,  105  Mass,  23;  Barry  v. 
Ransom,  12  N.  Y.  462;  Apgar  v.  Hiler,  4  Zab.  888.] 

So  also  a  person  may  take  himself  entirely  out  of  the  principle, 
as  where  he  becomes  merely  a  collateral  surety,  by  limiting  his  lia- 
bility to  payment  of  the  debt  upon  the  default  of  the  principal  and 
other  sureties;  and  on  a  bill  in  such  a  case,  filed  for  contribution, 
parol  evidence  is  admissible  to  show  what  the  real  contract  was, 
and  to  rebut  the  implied  contract  which  equity  raises  in  cases  of 
contribution:  Craythorne  v.  Sicinburne,  14  Ves.  160,  overruling 
Cooke  V. ,  2  Freem.  97;  S.  C,  2  Eq.  Ca.  Ab.  223,  pi.  1.  [Pa- 
rol evidence  is  admissible  to  show  the  true  relations  of  the  parties 
signing  an  instrument  as  between  themselves,  as  that  they  are  co- 
sureties: Graves  V.  Johnson,  48  Conn.  160;  Mansfield  ?'.  Edwards, 
136  Mass.  15;  Paul  v.  Rider,  58  N.  H.  119.]  See  also  Hartley  v. 
O' Flaherty,  L.  &  G.  temp.  Plunk.  217,  where  Lord  Pliinket  says,  "■  In 
the  case  of  A.  undertaking  that  if  the  principal  does  not  pay,  and 
if  B.,  who  has  already  become  security,  does  not  pay,  he.  A.,  will 

191 


*  125  BERING  V.  EARL  OF  WINCHELSEA. 

pay,  it  seems  perfectly  clear  that  B.,  in  that  ease  paying  the  whole, 
would  have  no  claim  of  contribution  against  A." 

As  to  the  mode  of  working  out  a  joint  and  several  liability  affect- 
ing a  class  of  persons  of  whom  some  had  died  and  others  become 
bankrupt,  see  Asfmrst  v.  Mason,  2  Seton  Decrees,  1183,  1184;  Form 
6;  S.  C,  20  L.'K.  225;  Joint  Stock  Discount  Company  v.  Brown,  8 
L.  R.  Eq.  376,  406. 

The  mode  of  procedure  where  a  defendant  claims  to  be  entitled 
to  contribution  or  indemnity  over  against  any  other  person  not  a 
party  to  the  action,  and  therein  called  a  third  party,  may  now  be 
found  in  the  Rules  of  the  Supreme  Court,  1883,  Order  XVI.,  rules 
48—54,  substituted  for  the  Order  1875,  XVI.,  rules  19— 
[  *  125]  21,  thereby  annulled,  as  to  wbich  see  2  Seton  *on  Decrees, 
4  Ed.,  pp.  1184, 1185,  Forms  8,  9. 

Where  a  defendant  claims  to  be  entitled  to  contribution  or  indem- 
nity against  any  other  defendant  to  the  action,  a  notice  may  be  issued 
and  the  same  procedure  ^hall  be  adopted  for  the  determination  of 
such  questions  between  the  defendants,  as  would  be  issued  and  taken 
ao-ainst  such  other  defendant  if  such  last-mentioned  defendant  were 
a  third  party ;  but  nothing  herein  contained  shall  prejudice  the  rights 
of  the  plaintiff  against  any  defendant  in  the  action:  [As  soon  as  the 
creditor  has  acquired  the  right  to  immediate  payment,  from  the 
surety,  the  latter  is  entitled  to  call  upon  the  principal  debtor  to  pay 
the  amount  of  the  debt  which  has  been  guaranteed,  so  as  to  relieve 
the  surety  from  his  obligation.  Rice  v.  Downing,  12  B.  Mon.  44  : 
Bishop  V.  Day.  13  Vt.  81;  Stevenson  v.  Taverness,  9  Grat.  398; 
Pride  v.  Boyce,  Rice's  Eq.  276.]  Rules  of  Supreme  Court,  1883, 
Order  XVI.,  rule  55,  substituted  for  Order  of  1875  XVI.,  rules  17, 
18.     Eden  v.  Weardale  Iron  and  Coal  Compamj,  28  Ch.  D.  333. 

Right  of  surety  to  certain  securites  of  creditor.'] — Sureties  are  not 
only  entitled  to  contribution  m^er  se,  but  as  a  general  rule  also  they 
are  entitled  to  call  upon  any  one  of  their  co-sureties  who  may  have 
obtained  from  the  principal  debtor  a  counter-security  for  the  liability 
he  may  have  undertaken,  to  bring  into  hotchpot,  for  the  benefit  of 
all  the  sureties,  whatever  he  may  receive  from  that  source,  even 
though  he  consented  to  be  a  surety  only  upon  the  terms  of  having 
the  security,  and  the  co-sureties  were,  when  they  entered  into  the 
contract  of  suretyship,  ignorant  of  his  agreement  for  a  security  : 
Sicain  v.  Wall,  1  Ch.  Rep.  140;  Steel\.  Dixon,  17  Ch.  D.  825;  Miller 
v.  Sawyer,  30  Vermont,  412;  Hall  v.  Robinson.  8  Iredell,  56;  Lake 
V.  Brutton,  8  De  G.  M.  &  G.  441;  Forbes  v.  Jackson,  19  Ch.  D. 
615;  Lea  v.  Hinton,  5  De  G.  M.  &  G.  823;  Drysdale  v.  Piggott,  8 
De  G.  M.  &  G.  546;  Knox  v.  Turner,  5  L.  R.  Ch.  App.  515;  Bruce 
v.  Garden,  5  L.  R.  Ch.  App.  32. 

So  if  one  of  several  co-sureties  pays  off  the  debt  and  obtains  from 
the  creditor  an  assignment  of  policies  of  assurance  he  had  effected 
on  the  life  of  the  debtor,  contribution  will  only  be  enforced  against 
192 


BERING  V.  EARL  OF  WINCIIELSEA.  *  126 

the  other  co-sureties,  in  favour  of  the  co  surety  who  had  paid  the 
debt,  upon  the  terms  of  his  bringing  into  account  as  a  set-off  the 
moneys  receiveil  u[)on  the  policies  on  the  death  of  the  debtor,  creait 
being  lirst  given  for  the  premiums  and  other  moneys  which  had  been 
paid  in  reference  to  the  transaction:  l)i  re  Arcedeckne,  Atkins  \. 
Arcedecktie,  24  Gh.  D.  709. 

Those,  how(wer,  to  whose  benefit  the  security  enures  mayloy  con- 
tract take  themselves  out  of  its  benefit,  and  the  question  may  there- 
fore well  have  to  be  considered  in  each  case  whether  there  has  been 
such  a  contract  between  the  co-sureties  (per  Fry,  J.,  in  Stez-l  v. 
Dixon,  17  Ch.  D.  832);  and  in  such  a  case  as  In  re  Arcedeckne, 
Atkins  V.  Arcedeckne,  such  transactions  might  take  place  between  the 
surety  taking  an  assignment  of  policies  on  payment  of  the 
creditor  and  his  co-sureties,  which  would  show  that  *  the  [  *  120  ] 
co-sureties  abandoned  the  policies  altogether  and  declined 
to  take  either  the  burden  or  the  benefit  of  them:  In  re  Arcedeckne, 
Atkins  V.  Arcedeckne,  24  Ch.  D.  716. 

Cases  may  also  arise  in  which  one  co-surety,  by  reason  of  his  de- 
fault in  performing  his  duty  towards  the  other,  may  estop  himself 
from  asserting  the  equity  which  he  would  otherwise  have  had  against 
him:  [In  order  to  take  away  the  Equitable  right  of  enforcing  con- 
tribution there  must  be  an  evil  intent  similar  to  the  element  of  in- 
tent in  the  criminal  law  where  an  ignorance  of  fact  of  a  sort  to  free 
one  from  culpability  will  excuse  what  otherwise  would  be  punish- 
able: 1  Bishop's  Crim.  Law  sec.  301;  Moore  v.  Appleton,  26  Ala. 
633;  Adamson  v.  Jarvis,  4  Bing.  66;  Acheson  v.  Miller,  2  Ohio. 
203.]     lb. 

As  a  general  rule  also  (subject,  however,  to  some  few  qualifica- 
tions) a  surety  is  entitled  to  the  benefit  of  all  the  securities  xvhichthe 
creditor  has  against  the  princij^al.  Thus,  if  a  surety  join  with  the 
principal  in  a  promissory  note  or  bond,  and  the  sui'ety  pays  the  debt, 
he  will  be  entitled  to  have  a  transfer  of  any  mortgage  which  the 
creditor  may  have  taken  for  his  debt.  "I  take  it,"  says  Lord  Eldon,  "to 
be  exceedingly  clear,  if  at  the  time  a  bond  is  given  a  mortgage  is 
also  made  for  securing  the  debt,  the  surety,  if  he  pays  the  bond,  has 
aright  to  stand  in  the  place  of  the  mortgagee;  and  as  the  mortgagor 
cannot  get  back  kis  estate  again  without  a  conveyance,  that  security 
remains  a  valid  and  effectual  security,  notwithstanding  the  bond 
debt  is  paid:"  Copis  v.  Middleton,  T.  &  R.  231;  see  also  Hodgson 
V.  Shaic,  3  My.  &  K.  195;  Gaijner  v.  Roijner,  cited  in  Robinion  v. 
Wilson,  2  Madd.  434;  Yonge  v.  Reynell,  9  Hare,  809;  Goddard  v. 
Whyte,  2  GifF,  449;  Brandon  v.  Brandon,  3  De  G.  &  Jo.  524.  And 
it  is  immaterial  that  the  surety  was  not  aware  of  the  existence  of  the 
security  (Mai/hetv  v.  Crickett,  2  Swanst.  191;  Scott  v.  Knox,  2  Jones, 
778);  or  whether  they  were  taken  by  the  creditor  before  or  after  the 
contract  of  suretvship:  Fledge  y.  Buss,  Johns.  663;  Pearl  v.  Deacon, 
24  Beav.  186;  f  De  G.  &  Jo.  461;  Coates  v.  Coates,  10  Jur.  N.  S. 
532.     Sed  vide  Neivton  v.   Chorlton,  10  Hare,  646,  2  Drew.  342; 

13   WHITE  ON   EQUITY.  193 


*  127  DERING  V.  EARL  OF  WINCHELSEA. 

doubted  by  Knight- Bruce,  L.  J.,  2  Jur.  N.  S.  840;  see  Rees  v. 
Berriugton,  vol.  2,  post,  and  note. 

But  the  surety  may  lose  his  right  against  the  principal  security, 
by  taking  from  the  principal  debtor  a  security  upon  other  property 
(Cooper  V.  Jenkins,  32  Beav.  337),  unless  be  has  done  so  without 
knowledge  of  the  security  held  by  the  creditor,  which  was  available 
for  his  own  indemnity:  Lake  v.  Brutton,  18  Beav.  34;  8  De  G. 
Mac.  &  G.  440;  Brandon  v.  Brandon,  5  Jur.  N.  S.  256;  3  De  G.  & 
Jo.  524. 

Where,  moreover,  a  surety  for  a  mortgagor  pays  off  part  of  the 
mortgage  debt,  he  is  entitled  as  against  the  mortgagor  to  a  charge 
on  the  estate  for  the  amount  he  has  so  paid:  Gedye  v.  Matison,  25 
Beav.  310. 

A  surety,  however,  for  part  of  a  debt,  is  not  entitled  to  the  benefit 

of  a  security  given  by  the  debtor  to  the  creditor  at  a  diff- 

[*  127  ]  erent  time  *  in  a  distinct  transaction  for  another  part  of 

the  debt:   Wadey.  Coope,  2  Sim.  155;  South  v.  Bloxam,  2 

H.  &  M.  457. 

Where  a  surety  pays  a  sum  of  money,  in  discharge  of  his  guar- 
antee, leaving  a  balance  for  which  he  was  not  surety  still  unpaid,  if 
the  security  of  the  principal  creditor  is  not  delivered  up,  nor  any- 
thing said  about  it,  the  presumption  is  that  the  original  security  was 
intended  to  remain  as  to  the  balance,  and  it  will  not  be  treated  as 
released.  See  Waugh  v.  Wre^i,  9  Jur.  N.  S.  365;  11  W.  R.  244. 
There  a  security  was  given  for  a  floating  balance  of  2000Z.,  and  when 
the  debt  had  reached  4600Z.,  a  surety  for  2000Z.  paid  a  sum  of  3000Z. 
in  discharge  of  his  guarantee,  but  the  security  was  not  given  up;  it 
was  held  that  the  creditor  was  entitled  to  hold  the  security  for  the 
balance. 

The  question  has  been  much  discussed  whether  a  mortgagee  whose 
original  advance  has  been  secured  by  a  surety,  can,  as  against  the 
surety,  tack  a  subsequent  mortgage  to  the  same  creditor,  or  whether 
the  surety,  upon  paying  off  the  original  advance  alone,  cannot  call 
for  an  assignment  of  the  original  security.  In  the  case  of  Williams 
V.  Oiven,  13  Sim.  597,  where  a  mortgage  debt  was  further  secured 
by  the  covenant  of  a  surety  for  the  mortgagor,  and  the  mortgagee 
made  a  further  advance  and  then  recovered  the  first  mortgage  debt 
from  the  surety,  it  was  held  that  the  surety  must  pay  the  amount  of 
the  further  advance  before  he  could  get  an  assignment  of  the  prop- 
erty to  him.  In  the  subsequent  case  of  Boivker  v.  Bull  (1  Sim.  N. 
S.  29;  15  Jur.  4),  a  contrary  decision  was  arrived  at  by  Lord  Cra^i- 
worth,  L.  C.  There  the  principal  debtor  mortgaged  one  estate,  and 
the  sureties  another,  in  order  to  secure  the  debt,  and  the  principal 
made  a  second  mortgage  of  his  estate  to  the  same  mortgagee  for 
another  sum;  it  was  held  that  the  sureties  were  entitled  to  redeem 
the  first  mortgage  on  payment  of  the  first  mortgage  debt  only,  and 
the  mortgagee  was  not  entitled  to  tack  the  second  mortgage.  Lord 
C.  anworth  (as  Williams  v.  Owen,  13  Sim.  507,  was  not  cited  to  him) 
194 


BERING  V.  EARL  OF  WINCIIELSEA.  *  128 

was  probably  not  aware  of  the  case,  and  therefore  did  not  intend  to 
overrule  it;  but  althouj^h  Lord  Komilly,  M.  R.,  in  the  Bubsequent 
case  of  Farebrofher  v.  Woodhouse,  23  Beav.  1 8,  seemed  to  be  of  opin- 
ion that  Lord  Cranworth's  decision  in  Bowker  v.  Bull  was  depend- 
ent on  the  special  contract  in  the  case,  it  has  been  approved  of  by- 
subsequent  decisions,  and  the  case  of  Williams  v.  Given  was  clearly 
overruled  in  and  is  inconsistent  with  Uopkinson  v.  Roll  (9  H.  L. 
514),  a  decision  of  the  House  of  Lords.  See  In  re  Kirkwood's  Es- 
tate, 1  L.  R.  I.  108. 

It  seems  to  be  clear,  therefore,  that  in  such  cases  a  mort- 
gagee making  a  second  advance  with  *  notice  of  the  surety-  [  *  128] 
ship  cannot  tack  the  two  securities,  as  against  the  surety 
paying  off  the  sum  secured  by  the  first.  See  also  Bank  of  White- 
haven v.  Daicson,  4  Ch.  D.  (349,  650;  reversed  on, another  point,  6 
Ch.  D.  218;  Netcton  v.  Chorlton,  10  Hare,  646;  Forbes  v.  Jackson, 
19  Ch.  D.  6 1 5.  See  and  consider  Farebrothe  v.  Wodehouser,  23  Beav. 
18,  pos^  129,  130. 

A  surety  who  pays  off  a  debt  for  which  he  became  answerable  is 
entitled  not  only  to  all  the  equities  which  the  creditor  could  have 
enforced  against  the  principal  debtor,  but  also  against  all  persons 
claiming  under  him.  [A  person  who  has  become  surety  for  another 
is,  if  he  discharges  the  debt  of  his  principal,  entitled  to  recover  of 
him,  or  his  co-sureties,  or  any  one  claiming  under  them,  on  a  contract 
which  the  law  will  imply,  though  nothing  on  the  subject  was  said 
when  the  suretyship  was  entered  into:  Clay  v.  Severance,  55  Vt. 
300;  Ward  v.  Henry,  5  Conn.  505;  Kimble  r.  Cummins,  3  Met.  (Ky.) 
327;  Powell  v.  Smith,  8  Johns.  240;  Hassenger  r.  Solms,  5  S.  &  R. 
4;  Gibbs  v.  Bryant,  1  Pick.  118.]  Hence  a  surety  will  not  be  de- 
prived of  his  right  to  the  principal  security,  by  a  further  mortgage 
by  the  debtor  to  a  person  who  had  notice  of  the  first  mortgage,  though 
the  second  mortgagee  got  in  the  legal  estate.  See  Dreiv  v.  Lockett, 
32  Beav.  499.  There  A.  mortgaged  his  estate  to  C,  and  B.  became 
A.'s  surety  for  the  debt.  Afterwards  A.  mortgaged  the  estate  to  D., 
who  had  notice  of  the  first  mortgage.  The  first  mortgage  was  after- 
wai-ds  paid  off,  partly  by  B.  the  surety,  but  D.  got  the  transfer  of 
the  legal  estate.  It  was  held  by  Sir  John  Romilhj,  M.  K.,  that  the 
surety  still  had  priority  over  D.  for  the  amount  paid  by  him  under 
the  first  mortgage  as  surety  for  A.  See  also  Bowker  v.  Bull  1  Sim. 
J^.  S.  29;  Lancaster  v.  Evors,  10  Beav.  154. 

Upon  the  same  principle  a  surety,  as  standing  in  the  place  of  the 
creditor,  has  been  held  entitled  to  marshal  securities  not  only  as 
against  the  principal  debtor,  but  also  as  against  all  persons  claiming 
under  him.  See  Heyman  v.  Dubois,  13  L.  R.  Eq.  158.  There  A., 
having  effected  policies  upon  his  own  life  with  an  assurance  office, 
mortgaged  them  to  the  office  as  a  security  for  successive  loans.  In 
one  of  these  mortgages  B.  became  surety  for  repayment  of  the  amount 
borrowed.  A.  subsequently  became  bankrupt,  and  B.  was  compelled 
as  surety  to  pay  part  of  the  debt.     Upon  A-'s  death,  it  was  held  by 

195. 


*  129  BERING  V.  EARL  OF  WINCHELSEA, 

Bacou,  V.-C,  that  as  against  A-'s  assignee  in  bankruptcy,  B.  was 
entitled  to  marshal  the  securities  so  as  to  obtain  repayment  out  of 
the  balance  of  the  several  policy  moneys  of  the  amount  which  he  had 
been  compelled  as  surety  to  pay.  See  also  In  re  Westzinthus.  5  B. 
&Ad.  817;  Spalding  v.  Ruding,  6  Beav.  376;  note  to  Aldrich  v. 
Cooper,  vol.  2,  x>o8t. 

A  surety,  moreover,  has  a  right  to  set  off,  as  against  the  demand 
of  the  creditor,  a  debt  due  from  the  principal  debtor  to  the  creditor 
arising  out  of  the  same  transaction  in  which  the*  liability  of  the 
surety  arose.  See  Bechervaise  v.  Leivis,  7  L.  R.  C.  P.  372.  There 
the  defendant  as  surety  joined  Rowe  in  a  joint  and  several  note  to 
the  plaintiff  for  a  sum  which  Rowe  had  agreed  to  pay  the 
[  *  129  ]  *  plaintiff.  Afterwards,  without  the  consent  of  the  defend- 
ant, the  plaintiff  became  indebted  to  Rowe  by  receiving 
various  partnership  debts  sold  to  Rowe,  and  in  payment  for  which 
the  note  was  given,  thereby  rendering  it  impossible  for  him,  either 
during  the  life  of  Rowe  or  after  his  death,  to  proceed  against  him  or 
his  representatives  in  order  to  indemnify  the  defendant  in  respect  of 
the  note  which  became  due  during  life  of  Rowe.  It  was  held  by  the 
Court  of  Common  Pleas  that  the  sui-ety  by  way  of  equitable  defence 
might  plead  a  special  plea  of  a  set-off*  due  from  the  creditor,  arising 
out  of  the  same  transaction,  in  respect  of  which  the  liability  of  the 
surety  arose.  "A  surety,"  said  Willis,  J.,  "has  a  right,  as  against 
the  creditor,  when  he  has  paid  the  debt,  to  have  for  reimbursement 
the  benefit  of  all  securities  which  the  creditor  holds  against  the  prin- 
cipal. This  alone  would  not  help  the  defendant  here,  because  he 
has  not,  nor  has  the  principal,  actually  paid  the  creditor,  and  in  our 
law  set-oif  is  not  regarded  as  an  extinction  of  the  debt  between  the 
parties.  The  surety,  however,  has  another  right,  ^^z.,  that  as  soon 
as  his  obligation  to  pay  is  become  absolute,  he  has  a  right  in  equity 
to  be  exonerated  by  his  principal.  Thus  we  have  a  creditor  who  is 
equally  liable  to  the  principal  as  to  the  principal  to  him,  and  against 
whom  the  principal  has  a  good  defence  in  law  and  equity;  and  a 
surety  who  is  entitled  in  equity  to  call  upon  the  principal  to  exon- 
erate him.  In  this  state  of  things  we  are  bound  to  conclude  that 
the  surety  has  a  defence  in  equity  against  the  creditor;  and  we  are 
justified  in  doing  so  by  the  authority  of  the  civil  law  alluded  to  in 
the  course  of  the  argument,  to  be  found  in  Dig.  Lib.  XVI.,  tit.  II., 
sect.  4.  '  Verum  est,  quod  et  Neratio  placebat  et  Pomponius  ait, 
ipso  jure  eo  minus  fidejussorum  ex  omni  contractu  debere  quod  ex 
compensatione  reus  retinere  potest.  Sicut  enim  cum  totum  peto  a 
reo,  male  peto,  ita  et  fidejussor  non  tenetur  ipso  jure  in  majorem 
quantitatem,  quam  reus  condemnari  potest.'  " 

Where,  moreover,  a  surety  pays  off  a  mortgage  debt  of  the  prin- 
cipal debtor,  he  may  set  off"  in  bankruptcy  the  money  which  thus 
becomes  due  to  him  as  being  entitled  to  the  benefit  of  the  securi- 
ties against  money  due  from  himself  to  the  owner  of  the  equity  of 
redemption,  and  where  the  equity  of  redemption  belongs  to  a  joint 

196 


BERING  V.  EARL  OF  WINCIIELSEA.  *  130 

stock  company,  to  which  calls  are  duo  from  the  surety,  he  may  set 
<;i"f  his  payment  against  the  calls:  Ex  parte  Barrett,  34  L.  J. 
(Bank.)  41. 

So  likewise,  a  surety  for  the  payment  of  the  price  of  goods,  as 
in  the  case  of  a  broker  of  the  London  Dry  Goods  Market, 
who  contracts  for  the  purchase  of  ^- goods  without  dis-  [*130] 
closing  his  principal,  for  whom  he  is  liable  in  default  of 
the  principal,  upon  payment  of  the  price  of  the  goods  is  entitled 
to  the  benefit  of  the  vendor's  lien:  Imperial  Bank  v.  London  and 
St  Katherine  Docks  Company,  5  Ch.  D.  105. 

It  has  been  held  that  where  separate  debts  were  due  upon  dis- 
tinct securities  from  the  principal  debtor  to  the  creditor,  the  latter 
will  not  lose  his  right  to  consolidate,  by  the  fact  that  a  third  party 
who  has  become  surety  for  one  of  the  debts,  has  either  voluntarily 
or  upon  proceedings  taken  against  him  by  the  creditor,  paid  off  such 
debt,  and  that  the  surety  therefore  could  not  call  for  an  assignment 
of  the  securities  for  the  debt  he  had  paid  off.  See  Farebrother  v. 
Wodehouse,  23  Beav.  18.  There  the  defendants  lent  A.  B.  at  the 
same  time  two  sums  of  2000/.  and  3000Z.  on  distinct  securities,  and 
the  plaintiff  was  surety  for  the  first  sum.  It  was  held  by  Sir  John 
Bomilhj,  M.  R,  that  the  plaintiff,  on  paying  the  2000/.,  was  not  en- 
titled to  have  a  transfer  of  the  securities  held  for  that  sum,  until 
the  defendants  had  also  been  paid  the  3000Z. 

There  was  an  appeal,  which  was  afterwards  compromised  (26  L. 
J.  (Ch.)  240),  on  this  case;  it  seems,  however,  to  be  contrary  to 
the  principles  of  those  decisions  on  tacking  in  which  the  right  of 
the  surety  to  an  assignment  of  securities  for  the  debt  he  has  satis- 
tied  has  been  upheld.     See  ante,  p.  1 27. 

When  a  mortgagor  has  given  a  collateral  security  for  the  original 
debt,  and  borrows  a  further  sum,  which  is  guaranteed  by  a  surety, 
the  latter  is  entitled  to  the  surplus  value  of  the  securities,  after  pay- 
ment of  the  original  debt,  towards  payment  of  that  debt  for  which 
ho  is  surety.  See  Praed  v.  Gardiner,  2  Cox,  86.  There  A.,  being 
indebted  to  B.,  lodged  several  securities  for  money  with  him,  as 
collateral  securities  for  that  debt.  A.  afterwards  bon-owed  a  fur- 
ther sum  of  money  fi-om  B.,  for  which  C.  became  his  surety.  A. 
became  bankrupt,  and  B.  called  upon  C.  to  pay  the  second  debt.  It 
was  held  that  the  securities  in  the  hands  of  B.,  being  more  than 
sufficient  to  pay  the  first  debt,  C.  ought  to  have  the  benefit  of  the 
surplus  in  reduction  of  the  second  debt.  See  also  Copis  v.  Middle- 
ton,  T.  &  K  224;  Hodgson  v.  Shaxc,  3  Mv.  &  K.  183,  195.  Sedvide 
Allen  v.  De  Lisle,  5  W.  K.  (V.-C.  S.)  158;  3  Jiu-.  N.  S.  928;  Saic- 
yer  v.  Goodivin,  1  Ch.  D.  351. 

The  right  of  the  surety  to  have  the  benefit  of  the  securities  held 
by  the  creditor  is  derived  from  the  obligation  on  the  part  of  the 
principal  to  indemnify  the  surety:   Yonge  v.  Beynell,  9  Hare.  818. 

And  if  through  neglect  on  the  part  of  a  creditor  a  security  to 
the  benefit  of  which  a  sui'ety  is  entitled  is  lost, "or  not  properly 

197 


*  132  BERING  V.  EARL  OF  WINCHELSEA. 

[*131]  perfected,  *  the  surety  will  be  discharged  so  far  regards 
the  amount  of  the  security  so  lost:  Strange  v.  Fooks,  4 
Giff.  408;  2  Seten  on  Decrees,  1185,  4th  ed.     See  further  on  this 
subject,  note  to  Rees  v.  Berrington,  vol.  2,  post. 

The  rules  as  to  a  surety's  right  to  securities  do  not,  it  seems,  ap- 
ply where  the  only  suretyship  is  created  by  indorsing  and  discount- 
ing a  bill  of  exchange:  Duncan  Fox  &  Co.  v.  North  and  South 
Wales  Bank,  11  Ch.  T>.  88. 

"Where,  moreover,  a  surety  gets  rid  of  and  discharges  an  obliga- 
tion at  a  less  sum  than  its  full  amount,  he  cannot,  as  against  his 
principal,  make  himself  a  creditor  for  the  whole  amount,  but  can 
only  claim  what  he  has  actually  paid  in  discharge  of  the  common 
obligation:  Beed  v.  Norris,  2  My.  &  C.  361,  375. 

Courts  of  equity,  it  seems,  would,  at  a  very  early  period,  compel 
assignments  of  securities  to  a  surety  to  a  much  greater  extent  than 
in  later  times  they  took  upon  themselves  to  do.  There  is  a  very 
strong  instance  of  the  application  of  that  equity  in  Parsons  v. 
Briddock,  2  Vern.  608.  In  that  case  the  principal  had  given  bail  in 
an  action;  judgment  was  recovered  against  the  bail;  afterwards  the 
surety  was  called  upon  and  paid;  and  it  was  held,  that  he  was  enti- 
tled to  an  assignment  of  the  judgment  against  the  bail.  So  that, 
though  the  bail  were  themselves  but  sureties  as  between  them  and 
the  principal  debtor,  yet,  coming  in  the  room  of  the  principal  debtor 
as  to  the  creditor,  it  was  held,  that  they  likewise  came  in  the  room 
of  the  principal  debtor  as  to  the  surety.  Consequently  that  de 
cision  established  that  the  surety  had  precisely  the  same  right  that 
the  creditor  had,  and  Was  to  stand  in  his  place.  The  surety  had 
no  direct  contract  or  engagement  by  which  the  bail  were  bound  to 
him,  but  only  a  claim  against  them  through  the  medium  of  the 
creditor,  and  was  entitled  only  to  all  his  rights. 

But  where  more  recently  a  creditor  sued  his  principal  debtor  and 
recovered  a  judgment  against  him,  and  the  bail  in  the  action  and 
the  surety  thereupon  "paid  and  satisfied"  to  the  creditor  the  amount 
of  the  judgment,  with  interest  and  costs,  and  took  an  assignment 
thereof.  Lord  Langdale,  M.R.,  held,  that  the  judgment  was  dis- 
charged, and  that  the  surety  could  not  recover  on  the  judgment 
against  the  bail.  Armitage  v.  Baldivin,  5  Beav.  278;  Hodgson  v. 
Shaw,  3  My.  &  K.  189;  Dowhiggin  v.  Bourne,  2  Y.  &  C.  Exch.  Ca. 
462. 

Upon  the  same  principle,  although  it  was  at  one  time  thought 
that  a  surety  paying  off  the  debt  of  the  principal,  secured  by  their 
bond,  was  entitled  to  have  from  the  creditor  an  assignment  of  the 
debt  and  of  the  bond  by  which  it  was  evidenced  or  secured, 
[  *  132  ]  the  contrary  was  fully  established  *iu  two  cases  decided 
by  Lord  Eldon,  C,  and  Lord  Brougham,  C,  where  the 
whole  subject  was  examined  in  a  most  elaborate  manner.     See  Copis 
V.  Middleton,  1  T.  &  E.  229,  where  Lord  Eldon  said:     "It  is  a  gen- 
eral rule,  that,  in  equity,  a  surety  is  entitled  to  the  benefit  of  ail  the 
198 


DERING  V.  EARL  OF  WINCHELSKA.  *  133 

securities  which  the  creditor  has  against  the  principal;  but  then  the 
nature  of  those  securities  must  be  considered.  AVhere  there  is  a 
bond  merely,  if  an  action  was  brought  upon  the  bond,  it  would  ap- 
pear upon  oyer  of  the  bond  that  the  debt  was  extinguished.  Th(» 
general  rule,  therefore,  must  be  qualified  by  considering  it  to  ap- 
ply to  such  securities  as  continue  to  exist,  and  do  not  get  back  upon 
payment  to  the  person  of  the  principal  debtor.  In  the  case,  for  in- 
stance, where,  in  addition  to  the  bond,  there  is  a  mortgage,  with  a 
covenant  on  the  part  of  the  principal  debtor  to  pay  the  money, 
the  surety  paying  the  money  would  be  entitled  to  say,  'I  have  lost 
the  benefit  of  the  bond;  but  the  creditor  has  a  mortgage,  and  I 
have  a  right  to  the  benefit  of  the  mortgaged  estate  which  has  not 
got  back  to  the  debtor.'  "  See  also  the  remarks  of  Lord  Brougham, 
in  Hodgson  v.  Slimc,  3  My.  &  K.  190. 

It  followed,  contrary  to  what  was  formerly  considered  to  be  the 
law,  that  a  surety,  paying  off  the  bond  debt  of  the  principal,  was 
in  the  administration  of  his  assets  me^ly  a  simple  contract,  and  not 
a  specialty  creditor.  Copis  v.  Middleton,  1  T.  &  R.  229.  See  also 
Jones  V.  Davids,  4  Russ.  277;  In  re  Warnock^s  Estate,  11  I.  R. 
Eq.  212. 

Where,  however,  a  surety  upon  a  second  bond,  given  by  him  as 
a  collateral  security  for  a  debt  secured  by  the  original  bond  of  his 
principal,  paid  off  the  debt,  he  was  entitled  to  an  assignment  from 
the  creditor  of  the  original  bond;  for  the  original  bond  still  re- 
mained as  an  existing  security;  and  the  surety,  therefore,  upon  an 
assignment  of  it,  ranked  as  a  specialty  creditor  against  the  assets 
of  the  principal  debtor.  Thus,  in  Hodgson  v.  Shaiv,  3  My.  &  K. 
183,  "A.  and  B.  executed  a  joint  and  several  bond,  to  secure  a  sum 
of  money  with  interest  to  AV.  Subsequently  to  the  deaths  of  A. 
and  W.,  the  executors  of  W.  obtained  from  B.  as  principal,  and 
from  C.  as  surety,  another  bond,  to  secure  a  part  of  the  money  then 
due  on  the  original  bond,  with  interest.  No  payments  were  ever 
made  in  respect  of  the  first  bond;  but  after  C.'s  death  the  second 
bond  was  paid  off  out  of  C.'s  estate,  and  his  representatives  there 
upon  procured  the  original  bond  to  be  assigned  to  them:  it  was 
held,  in  a  suit  to  administer  the  estate  of  A.,  that  C.'s  representa- 
tives were  entitled,  by  virtue  of  the  assignment,  to  rank  as  speci- 
alty creditors  of  A.'s  estate,  in  respect  of  the  payments 
made  by  C.  or  his  *  estate  of  the  second  bond,  to  the  ex-  [  *  133  ] 
tent  of  the  penalty  in  the  assigned  bond;"  and  see  Done 
v.  }Valletj,  2  Exch.  198. 

Where  a  surety  paid  the  debt  due  from  a  defaulter  to  the  Crown, 
the  Court-of  Exchequer  would  allow  him  to  stand  in  the  place  of 
the  Crown:  Regina  v.  Salter,  1  H.  &  N.  274;  Regina  v.  Robinson, 
lb.  275,  n. 

Extension  of  the  surety^ s  right  to  the  securities  of  the  creditor  by 
the  Mercantile  Law  Amendment  Act,   1856.] — According  to  the  law 

199 


*  134  BERING  V.  EARL  OF  WINCHELSEA. 

of  Scotland  the  surety  has  always  been  entitled  to  call  upon  the 
creditor  for  a  surrender  or  assignment  of  all  separate  and  collateral 
Feeurities  obtained  by  him  for  the  debt,  his  right  not  being  limited 
by  the  exception  introduced  or  approved  of  by  Copis  v.  Middleton, 
and  Hodgson  v.  Shaiv.  "The  equity  and  propriety  of  the  Scottish 
rule"  are  by  the  Mercantile  Law  Commissioners  stated  to  be  "ob- 
vious, inasmuch  as  the  surety  obtains  much  aid  in  operating  his  re- 
lief from  the  hardship  of  having  been  compelled  to  pay  another 
party's  debt,  and  yet  no  detriment  is  thereby  inflicted  on  any  other 
party."      (Mercantile  Commission,  Second  Eeport,  1855,  p.  13.) 

In  accordance  with  their  recommendation,  the  law  of  England 
upon  this  sul^ject  has  been  assimilated  to  that  of  Scotland  by  the 
Mercantile  Law  Amendment  Act,  1856  (19  &  20  Vict.  c.  97),  which 
enacts,  that  "Every  person  who,  being  surety  for  the  debt  or  duty 
of  another,  or  being  liable  with  another  for  any  debt  or  duty,  shall 
pay  such  debt  or  perform  such  duty,  shall  be  entitled  to  have  as- 
signed to  him,  or  to  a  trustee  for  him,  every  judgment,  specialty, 
or  other  security  which  shall  be  held  by  the  creditor  irw  respect  of 
such  debt  or  duty,  whether  such  judgment,  specialty,  or  other  security 
shall  or  shall  not  be  deemed  at  law  to  have  been  satisfied  by  the 
payment  of  the  debt  or  performance  of  the  duty;  and  such  person 
shall  be  entitled  to  stand  in  the  place  of  the  creditor,  and  to  use  all 
the  remedies,  and,  if  need  be,  and  upon  a  proper  indemnity,  to  use 
the  name  of  the  creditor,  in  any  action  or  other  proceedings  at  law^ 
or  equity,  in  order  to  obtain  from  the  principal  debtor,  or  any  co- 
security,  co-contractor,  or  co-debtor,  as  the  case  may  be,  indemnifi- 
cation for  the  advances  made  and  loss  sustained  by  the  person  who 
shall  have  so  paid  such  debt  or  performed  such  duty;  and  such  pay- 
ment or  performance  so  made  by  such  surety  shall  not  be  pleadable 
in  bar  of  any  such  action  or  other  proceeding  by  him :  Provided 
always,  that  no  co-surety,  co-contractor,  or  co-debtor,  shall  be  en- 
titled to  recover  from  any  other  co-surety,  co- contractor,  or  co-debtor 
by  the  means  aforesaid,  more  than  a  just  proportion  to 
[*134]  which,  as  between  those  parties  *  themselves,  such  last- 
mentioned  person  shall  be  justly  liable."  Sect.  5.  See 
Allen  V.  De  Lisle,  5  W.  K  158,  V.-C.  S. 

The  statute  applies  to  a  co-debtor  as  well  as  to  a  surety.  Thus 
a  debtor  who  has  paid  the  whole  debt,  recovered  under  a  judgment 
against  himself  and  his  co-debtors,  has  a  right  to  an  assignment  of 
such  judgment.  See  Batchelor  v.  Lawrence,  9  C.B.  (N.S.)  543,  where, 
in  an  action  by  a  co-debtor  against  the  judgment  creditor,  refusing 
to  make  such  assignment,  it  was  held  by  the  Court  of  Common 
Pleas,  that  a  plea  that  the  plaintiif  was  taken  in  execution  on  the 
judgment,  and  the  judgment  was  satisfied,  by  the  payment  of  the 
plaintiff,  was  a  bad  plea.  See  also  SUk  v.  Eyre,  9  I.  R.  Eq.  393: 
Re  Swan,  4  L  R.  Eq.  209.  And  a  trustee  suing  his  co-trustee  for 
an  indemnity  against  a  breach  of  trust  is  within  the  Act:  Lockliart 
v.  Reilly,  1  De  G.  &  Jo.  464 
200 


DERING  V.  EARL  OF  WINCIIELSEA.  *  135 

But  it  seems  that  tlie  Court  had  no  power,  under  sect.  5  of  the 
Act  to  enforce  the  remedy  of  one  co-surety  against  the  other  upon 
motion.     See  Phi,llij>s  v.  Dickson,  8  C  B.  (N.  S.)  3'Jl. 

The  Act  is  a})plical)le  to  a  contract  made  before  the  passing  of  the 
Act,  where  a  breach  of  it  has  taken  place  and  a  i)ayment  has  been 
made  by  a  surety  or  co-debtor  under  such  contract  after  the  passing 
of  the  Act:  Lockhart  v.  Reilly,  1  De  G.  &  Jo.  464;  In  re  Cochran'' s 
Estate,  5  L.  K.  Eq.  209. 

It  may  be  here  mentioned  that  when  an  executor,  who  has  joined 
as  surety  with  his  testator,  i^a^.S'  the  amount  of  the  debt  after  the 
testator's  death,  he  is  entitled  to  retain  the  amount  out  of  the  testa- 
tor's assets  as  against  all  creditors  of  equal  degree:  Ex  parte  Boyd, 
18  W.  R.  (L.  C.)  419. 

But  although  under  the  5th  section  of  the  Mercantile  Amend- 
ment Act  185G,  a  surety  who  discharges  a  specialty  debt  becomes  a 
specialty  creditor  of  the  principal  debtor,  a  specialty  debt  is  not 
created  by  reason  of  the  enforcement  by  the  surety  of  his  right  to 
indemnity  against  a  specialty  debt  for  which  he  is  liable  but  which 
he' has  not  discharged.  See  Ferguson  v.  Gibson,  14  L.  R.  Eq.  379, 
38G.  There  A.  wife  of  the  testator,  under  a  power  mortgaged  her 
estate  as  a  collateral  security  for  the  mortgage  debt  of  her  husband. 
He  died  leaving  a  deficient  estate,  his  wife  and  daughter  being  ex- 
ecutrixes. The  mortgage  debt  not  having  been  paid  at  the  date  of 
a  decree  for  the  administration  of  the  estate,  it  was  held  that  the 
widow  executrix  was  entitled  to  retain  an  indemnity  as  surety  as 
against  the  simple  contract  creditors  only,  inasmuch  as  her  right  to 
indemnity  did  not  amount  to  a  specialty  debt. 

If,  however,  she  had  actually  paid  the  mortgage  debt,  or 
it  had  been  raised  out  of  her  estate  by  a  mortgage  *  she  [*  135] 
might  have  acquired  a  right  of  retainer  as  against  the 
specialty  creditors:  per  Wickens,  V.-C,  in  Ferguson  v.  Gibson,  14 
L.  R.  Eq.  386.  It  must,  however,  be  remembered,  that  under 
Hinde  Palmer's  Act  (32  &  33  Vict.  c.  46),  in  the  case  of  persons 
dying  on  or  after  the  1st  January,  1870,  their  debts  by  specialty  and 
simple  contract  are  payable  x)o.^  passu. 

Right  of  Surety  j>a?/i»fir  debt  to  stand  in  the  place  of  the  creditor 
in  bankruptcy.^ — In  many  other  cases,  the  surety  paying  the  debt 
has  been  held  to  have  a  right  to  stand  in  the  place  of  the  creditor. 
Thus,  although  under  the  old  Bankrupt  law,  pi-ior  to  49  Geo.  3,  c. 
121  (s.  8),  unless  the  surety  had  paid  the  creditor  before  the  bank- 
ruptcy of  the  principal,  he  could  not  prove  under  such  bankruptcy 
( Taylor  v.  Mills,  Cowp.  525 ;  Paul  v.  Jones,  1  T.  R.  599 ;  Ex  p)arte 
Marshall,  1  Atk.  130).  Nevertheless,  where  the  creditor  had  proved 
the  debt  against  the  estate  of  the  principal,  and  the  surety  after- 
wards paid  him  the  debt,  the  creditor  was  held  a  trustee  of  the  divi- 
dends for  the  surety:  Ex  parte  Rushforth,  10  Ves.  409;  Ex  parte 
Turner,  3  Yes.  243;  Paleyy.  Field,  12  Ves.  435;  Wright  v.  Morley,  11 

201 


*  136  BERING  V.  EARL  OF  WINCHELSEA. 

Ves.  1 2 ;  Watkins  v.  Flannagan,2  Euss.  421.  So  a  surety  might  com- 
pel the  creditor  to  go  in  and  prove  the  debt  under  the  bankruptcy  or 
the  principal  debtor,  and  if  the  surety  paid  the  whole,  the  creditor 
would  be  a  trustee  of  the  dividends  for  him:  {Ex  parte  Rushforth, 
10  Yes.  414).  And  if  the  creditor  had  already  received  a  dividend, 
he  would  be  compelled  to  account  for  it  to  the  surety:  Ex  parte 
Holmes,  Mont.  &  Ch.  301. 

The  law  by  which  the  surety,  on  his  payment  after  proof  of  the 
creditor,  can  compel  the  creditor  to  account  for  any  dividend  he  may 
have  received,  was  not  altered  by  the  Bankruptcy  Act,  1869  (Hob- 
son  V.  Bass,  6  L.  E.  Ch.  App.  792),  nor,  it  seems,  by  the  Bank- 
ruptcy Act,  1883. 

Under  successive  Bankruptcy  Acts  sureties  had  the  right,  although 
they  may  have  paid  the  debt  of  the  principal  debtor  after  his  bank- 
ruptcy, to  prove  against  his  estate,  or  stand  in  the  place  of  the 
creditor  who  may  have  proved.  See  49  Geo.  3,  c.  121,  s.  8;  6  Geo. 
4,  c.  16,  s.  52;  12  &  13  Vict.  c.  106  (the  Bankruptcy  Act,  1849),  s. 
173. 

The  Bankruptcy  Act,  1869  (32  &  33  Vict.  c.  71),  contained  no 
provision  upon  this  subject,  but  it  was  presumed  by  a  learned  au- 
thor on  bankruptcy  that  the  right  of  sureties  in  such  cases  depended 
upon  the  former  enactments,  though  repealed.  See  Eobson  on 
Bankruptcy,  265  3rd  ed.,  309,  5th  ed. 

And  although  the  Bankruptcy  Act  of  1883  contains  no 
[  *  136  ]  express  provision  on  the  same  subject,  if  a  *  surety  pay 
the  debt  after  the  bankruptcy  and  before  the  creditor  has 
proved,  the  surety  may  nevertheless,  under  sub-s.  3  of  sect.  37  of 
the  Act  of  1883,  prove  as  for  a  debt  to  which  the  bankrupt  becomes 
subject  before  his  discharge,  by  reason  of  an  an  obligation  incurred 
before  the  date  of  the  receiving  order. 

AVhere  after  proof  of  a  debt  by  a  creditor  a  surety  for  the  whole 
pays  2^cirt  only  to  the  creditor  not  in  discharge  of  the  whole,  the 
creditor  may  receive  dividends  on  the  full  amount  of  his  proof, 
provided  he  does  not  receive  in  the  whole  more  than  20s.  in  the 
pound:  Ex  j^arte  Cobblestone,  Re  Snell,  4  Deac.  54;  see  also  Ex 
parte  Turquand,  In  re  Fothergill,  3  Ch.  D.  445. 

If,  however,  the  surety  afterwards  pays  the  creditor  the  whole  of 
the  debt  remaining  due,  he  will  be  entitled  to  stand  in  the  place  of 
the  creditor  as  to  the  future  dividends  until,  by  means  of  those  divi- 
dends, he  has  been  fully  satisfied:  Ex  parte  Johnson,  1  De  G.  Mac. 
&  G.  Bank.  Eep.  179,  199. 

If  a  surety,  before  the  bankruptcy  of  the  principal  debtor,  pays 
part  of  the  debt,  he  will  be  entitled  to  prove  for  so  much  as  he  paid 
{Ex  parte  Wood,  10  Ves.  415,  cited;  Ex  parte  Turner,  lb.;  3  Ves. 
243;  Paley  v.  Field,  12  Ves.  435). 

But  the  right  of  the  surety  in  such  cases  to  stand  in  the  place  of 
the  creditor  as  to  the  dividend  upon  the  amount  paid  by  him,  may 
by  contract  be  waived  in  favour  of  the  creditor  until  he  has  received 
202 


BERING  V.  EARL  OF  WINCHELSEA.  *  137 

the  fiill  amount  of  bis  debt:  Midland  Banking  Company  v.  Cham- 
bers, 7  L.  K.  Eq.  179,  188;  4  L.  11.  Ch.  App.  ^i'.iS;  Ex  parte  Hope, 
8  M.  D.  &  DeG.  720;  Ex  parte  Miles,  1  Do  G.  023;  Ex  pai-te  Na- 
tio)ial  Provincial  Bank  of  England,  17  Cb.  D.  08;  Gee  v.  Pack,  33 
L.  J.  (Q.  B.)  4'J. 

Where  creditors  agree  to  accept  a  composition  payable  in  instal- 
ments, some  of  which  are  guaranteed  by  a  surety,  if  default  is  made 
in  the  payment  of  any  one  instalment,  the  creditors  have  a  rigbt  to 
sue  the  debtor,  or  to  prove  in  his  bankruptcy,  for  the  Vjalance  of 
their  original  debts,  after  deducting  what  they  have  received,  either 
from  the  debtor  or  the  surety,  in  respect  of  the  composition  and  not 
merely  for  the  amount  of  the  unpaid  instalments  of  the  composi- 
tion: Ex  parte  Gilbey,  In  re  Bedell,  8  Ch.  D.  248.  But  the  surety, 
though  he  is  entitled  to  prove  in  the  debtor's  bankruptcy  for  what 
he  has  paid  in  respect  of  the  composition,  has  no  right  to  put  the 
creditors  to  an  election  whether  they  will  carry  out  the  arrange- 
ment in  foto  or  reject  it  m  toto,  lb. 

Where  a  person  is  surety  for  a  limited  part  of  the  debt,  and  has 
paid  that  part  of  the  debt,  he  is  entitled  to  receive  the 
dividend  which  the  principal  debtor  pays  *  in  respect  of  [  *  137  ] 
that  sum,  and  the  court  will  order  the  payment  to  the 
surety  of  the  future  dividends  on  such  sum,  and  will  order  the 
creditor  to  pay  to  the  siu'ety  the  proportion  of  any  dividend  they 
may  have  already  received:  {Ex  parte  Rushforth,  10  Ves.  409; 
Paley  v.  Field,  12  Ves.  435;  Ex  parte  Brook,  2  Rose,  334;  Bardivell 
V.  Lydall,  7  Bing.  489;  Hobson  v.  Bass,C)  L.  K  Ch.  App.  792;  2 
Seton  on  Decrees,  1183,  4th  ed. ;  Goodwin  v.  Gray,  22  "\V.  R.  (M.  R.) 
312;  Thornton  v.  M'Keivan,  1  H.  &  M.  525;  2  Seton  on  Decrees, 
llS2,  4th  ed. );  and  in  this  respect  there  is  no  difference  between 
a  bankruptcy  and  winding-up:  Gi^ay  v.  Seckham,  7  L.  R.  Ch.  App. 
680,  684. 

The  rule,  however,  established  in  Ex  2^cirte  Turner  (3  Ves.  243), 
viz.  that  in  similar  cases  in  bankruptcy  the  sum  paid  by  the  sui'ety 
is,  in  calculating  the  proportion  of  dividend,  to  be  considered  as  ex- 
punged, does  not  apply  to  cases  in  winding-up.  See  Gray  v.  Seck- 
ham, 7  L.  R.  Ch.  App.  680,  685,  where  the  order  was  made  directing 
the  surety  to  receive  the  portion  of  dividend  due  on  the  sum  paid 
by  him  without  considering  the  sum  paid  by  him  as  having  been 
expunged. 

A  surety  for  a  limited  amount  of  the  debt  may  however  agree  to 
waive  his  right  to  prove  on  its  payment  for  the  benefit  of  the  cred- 
itor, and  it  is  now  not  unusual  for  contracts  of  guarantee  to  be  ex- 
pressly worded  so  as  to  show  that  it  was  intended  to  exclude  the 
surety  from  the  right  to  have  a  share  in  the  benefit  of  proof  (Mid- 
land Banking  Company  \.  Chambers,  4  L.  R.  Ch.  App.  398,401; 
ExjKirte  Hope,  3  M.  D.  &  De  G.  720;  Gee  v.  Pack,  33  L.  J.  (Q.  B.) 
49).  But  the  creditor,  although  under  such  circumstances  he  can 
prove  and  receive  dividends  for  the  whole  amount  of  the  debt,  will 

203 


*  138  BERING  V.   EARL  OF  WINCHELSEA. 

not  be  entitled  to  receive  more  than  20s.  in  the  pound  including  the 
sum  paid  to  him  by  the  surety,  lb. 

Where,  however,  a  person  is  with  others  a  surety  for  the  whole  of 
a  debt,  with  a  limit  on  the  amount  of  his  liability,  on  the  bank- 
ruptcy of  the  debtor  the  surety  will  not  be  entitled  to  the  benefit  of 
a  rateable  proportion  of  the  dividends  paid  on  the  whole  debt,  but 
is  bound  to  pay  the  creditor  the  sum  due  within  the  limit  of  his 
liability.  See  Ellis  v.  Emmanuel,  1  Exch.  D.  157.  There  the  prin- 
cipal debtor,  and  others  (seven  in  all,  reckoning  each  firm  a  sepa- 
rate person),  as  sureties  executed  a  bond  to  the  plaintiffs  whereby 
in  substance  the  eight  persons  bound  themselves,  and  every  two  or 
more  and  each  of  them,  jointly  and  severally  in  the  penal  sum  of 
14,000Z.  The  condition  of  the  bond  was,  that  if  the  eight  parties, 
or  any  or  either  of  them,  paid  the  principal  sum  of  7000Z.  by  cer- 
tain instalments  at  the  times  specified,  the  bond  should 
[  *  138  1  *  be  void  and  of  none  effect,  otherwise  it  should  remain 
in  full  force.  And  there  was  a  proviso,  that  four  of  the 
sureties  (including  the  defendant  Emmanuel)  should  not,  nor 
should  either  of  them,  be  liable  under  or  by  virtue  of  the  said  bond, 
whether  by  reason  of  a  joint  or  a  several  action  or  demand,  for  a 
sum  or  sums  exceeding  altogether  in  debt  or  damages  1300Z.  Then 
came  a  similarly  worded  proviso,  that  two  others  of  the  sureties 
should  not  be  made  liable  for  more  than  lOOl. ;  and  another  proviso 
that  the  seventh  surety  should  not  be  liable  for  more  than  400Z. 
The  aggregate  of  those  four  sums  of  1300^.,  two  of  700Z.,  and  one  of 
400Z.,  being  exactly  7000L  The  principal  debtor  having  paid  lOOOZ. 
part  of  the  debt,  then  tiled  a  petition  for  liquidation,  the  creditor 
proved  on  the  bond  and  received  a  dividend  of  9s.  2d.  in  the  pound 
on  the  6000Z. — viz.  2759Z.  8s.  2d.  under  the  liquidation.  After  de- 
ducting from  the  7000/.  the  lOOOZ.  and  the  dividend  of  2759Z.  8s.  2d., 
and  a  sum  paid  by  one  of  first  four  sureties  on  being  sued  there 
remained  more  than  1300L  due.  The  creditor  having  brought  an 
action  on  the  bond  against  Emmanuel,  one  of  the  sureties,  to  re- 
cover 1300Z.,  the  surety  contended  that  he  was  entitled  to  deduct 
from  the  1300Z.  a  rateable  proportion  of  the  dividend,  viz.  9s.  2d.  in 
the  pound  on  the  1300Z.,  and  that  he  was  liable  only  for  the  bal- 
ance. It  was  held  by  the  Court  of  Appeal,  afiirming  the  judgment 
of  the  Court  of  Exchequer,  that  the  intention  of  the  bond  was  that 
the  surety  should  guarantee  the  whole  7000Z.  though  his  liability 
was  limited  to  1300Z.,  and  that  he  was  therefore  not  entitled  to  de- 
duct a  rateable  proportion  of  the  dividend,  but  was  liable  for  the 
whole  1300Z. 

A  question  of  construction  often  arises  for  the  decision  of  the 
Court,  as  to  whether  it  was  the  intention  that  the  surety  should 
merely  guarantee  parZ  of  the  debt  or  whether  he  should  guarantee 
the  whole  of  the  debt  with  a  limitation  on  his  liability  as  surety. 

It  has  been  recently  laid  down  in  an  important  case,  as  the  result 
of  all  the  authorities,  that  where  a  surety  gives  a  continuing  guar- 
204 


DERING  V.  EARL  OF  WTNCIIELSEA.  *  139 

anteo  limited  in  amount  to  socnro  tho  floating  balance  which  may 
from  tiiiui  to  timo  bo  duo  from  tho  principal  to  tho  creditor,  tho 
gnararitoo  is,  as  botweoii  tlio  nuroty  and  the  creditor,  to  l)e  constru- 
ed (prinid  facie  at  least)  as  applical)lo  to  a  2>a/'^  only  of  tho  debt 
coextensive  with  the  amount  of  the  guarantee,  and  this  upon  the 
ground,  at  lirst  contined  to  equity,  bi^t  afterwards  extended  to  law, 
that  it  is  inequitable  to  the  creditor,  who  is  at  liberty  to  increase 
the  balance  or  not  to  increase  it,  at  the  expense  of  the  surety: 
])pr  Blackburn,  J.,  in  Ellis  v.  Emmanuel,  1  Exch.  D.  103; 
*  see  also  Ex  part e  Jiushforth,  10  Ves.  409;  Paley  v.  Field,  [*  130  ] 
12  Ves.  435;  Banlwell  v.  Ijijdall,  7  Bing.  481);  Raikes  \. 
Todd,  8  A.  &  E.  840,855;  Ex  jKirte  Holmes,  Mont.  &  Ch.  301,  310; 
Thornton  \.  M'Keivan,!  H.  &  M.  525;  32  L.  J.  (Ch.)09;  Gee  v. 
Fack,m  L.J.  (Q.  B.)49;  Hobson  v.  Bass,  6  L.  11.  Ch.  App.  794; 
Gray  v.  Seckham,  L.  R.  Ch.  App.  080.  It  is  true  that,  in  Ex  x)0.rte 
Rushivorth,  10  Ves.  400,  Lord  Eldon  attached  much  weight  to  a  stip- 
ulation as  to  the  notice;  and  in  Paley  v.  Field,  12  Ves.  435,  Sir 
William  Grant  rested  his  judgment  in  a  great  measure  upon  a  pro- 
viso for  indemnity.  Subsequent  decisions  have  decided  that  the 
result  would  have  been  the  same  had  there  been  no  such  stipulation. 
See  Ex  parte  Holmes,  Mont.  &  Ch.  301 ;  Gi^ay  v.  Seckham,  7  L.  R. 
Ch.  App.  080. 

If  a  creditor,  taking  a  limited  security  for  a  floating  balance, 
means  it  to  be  a  security  for  the  whole  of  the  debt,  and  not  merely 
for  a  part,  be  should  take  care  that  this  is  clearly  expressed,  for  the 
jjrimci  facie  construction  is  the  other  way,  and  the  court  ought  not 
to  split  hairs  or  make  nice  verbal  distinctions  in  the  words  used. 
See  Hobson  \.  Bass,  0  L.  R.  Ch.  App.  794;  Ellis  v.  Emmanuel,  1 
Exch.  D.  108. 

There  is,  however,  no  case  which  lays  down  that  where  the  sure- 
tyship limited  in  amount  is  for  a  debt  already  ascertained  which  ex- 
ceeds that  limit,  it  is  ptrimd  facie  to  be  construed  as  a  security  for 
part  of  the  debt  only;  and  there  does  not  appear  to  be  any  princi- 
ple on  which  such  aprimdfacie  construction  ought  to  be  adopted. 

It  is  in  such  a  case  a  question  of  construction  on  which  the  Court 
is  to  say  whether  the  intention  was  to  guarantee  the  whole  debt, 
with  a  limitation  on  the  liability  of  the  surety,  or  to  guarantee  a 
part  of  the  debt  only;  per  Blackburn,  J.,  in  Ellis  v.  Emmanuel,  1 
Exch.  D.  109. 

"Where  under  the  old  law  a  surety  paid  the  debt  with  interest 
subsequent  to  the  bankruptcy  of  the  debtor,  he  could  not  prove  for 
such  subsequent  interest;  Ex  parte  Wilson,  1  Rose,  137;  Ex  parte 
Houston,  Re  Boyd,  2  G  &  J.  50. 

Whether  such  subsequent  interest  could  now  be  proved  as  a  del:)t 
under  Rules  17  and  20  to  Schedule  of  the  Bankrupcy  Act,  1883  (46 
&  47  Vict.  c.  52),  appears  to  be  doubtful.  See  Ex  parte  Sander- 
son, Re  Alexander,  8  De  G.  Mac.  &  G.  849. 

Where  several  persons  are  liable  each  in  solido,  to  a  debt,  and 

205 


*  140  BERING  V.  EARL  OF  WINCHELSEA. 

the  creditor  enforces,  as  he  may  do,  payment  in  a  manner  which 
as  between  the  debtors  is  unjust,  the  Court  of  Bankruptcy  will  en- 
deavor to  place  them  in  the  same  situation  between  themselves 
as  if  the  creditor  had  enforced  his  rights  against  them 
[  *  140  ]  *in  a  manner  conformable  to  their  rights  against  each 
other  so  far  as  it  can  be  done.  See  Ex  parte  Stokes,  De 
Gex,  618.  There  a  bond  was  entered  into  by  a  principal  and  three 
sureties.  The  principal  and  one  of  the  sureties  compounded  with 
their  creditors,  and  the  other  two  sureties  became  bankrupt.  The 
obligee  proved  the  full  amount  of  his  debt  against  the  separate 
estates  of  the  two  bankrupts,  and  claimed  under  the  compositions, 
and  by  these  means  received  20s.  in  the  pound;  but  the  estate  of 
the  compounding  surety  paid  more  than  its  contributive  share.  It 
was  held  by  Knight-Bruce,  V.-C,  that  that  estate  was  entitled  to 
the  benetit  of  the  proof  made  by  the  obligee  against  the  bankrupt 
surety. 

Where  one  of  two  co-debtors  under  a  joint  promissory  note  paid 
the  principal  debtor  after  the  bankruptcy  of  the  other,  it  was  held 
that  he  was  not  entitled  as  a  surety  under  the  Act  then  in  force 
(6  Geo.  4,  c.  16,  s.  52),  or  to  prove  for  a  moiety  of  the  note  against 
the  estate  of  his  co-debtor:  Ex  parte  Porter,  4  D.  &  C.  774. 

But  he  might  probably  now  prove  in  respect  of  the  payment  of 
the  note,  by  reason  of  its  being  an  obligation  incurred  before  the 
date  of  the  receiving  order.  See  Sec.  37,  sub-s.  3  of  the  Bank- 
ruptcy Act,  1883. 

[^Doctrine  of  Contribution  Restated. — The  principle  as  between 
co-sureties,  is  equality  of  burden  and  equality  of  benefit. 

The  equity  of  contribution  arises  when  one  of  several  persons 
who  are  liable  to  a  common  debtor  obligation  discharges  the  same 
for  the  benefit  of  all.  The  surety  who  has  discharged  the  debt  has 
the  right  to  call  upon  his  co-debtors  to  pay  their  proportionate 
part. 

At  common  law  no  contribution  could  have  been  enforced,  each 
surety  was  liable  only  for  his  pro  rata  proportion,- but  in  equity 
the  burden  is  divided  between  the  solvent  sureties.  Each  surety 
bringing  into  hotchpot  every  security  which  he  may  hold,  and  all 
the  sureties  are  entitled  to  the  benefit  derived  from  the  same. 

The  sureties  may  be  bound  at  different  times  or  by  different  in- 
struments yet  if  they  are  bound  for  the  same  debt  contribution  can 
be  enforced. 

The  surety  is  entitled  to  recover  from  the  principal,  the  amount 
of  the  debt  with  the  interest  and  costs. 

A  surety  who  is  indemnified  by  the  principal  cannot  recover  for 
contribution,  except  so  far  as  that  indemnity  does  not  extend: 
Morrison  v.  Taylor,  21  Ala.  779;  neither  can  a  surety  enforce  con- 
tribution if  he  has  neglected  to  interpose  a  legal  defence,  as  of  the 
statute  of  limitations. 
206 


DERING  V.  EARL  OF  WINCHELSEA.  *  140 

If  a  person  becomes  snrety  on  a  supplemental  instrument,  with 
the  understanding  that  he  is  to  become  liable  only  on  the  failure 
of  the  principal  and  his  sureties,  he  cannot  be  compelled  to  con- 
tribute. Neither  will  contribution  be  enforced  between  wrong- 
doers.   • 

The  right  of  contribution  may  be  asserted  through  the  medium 
of  a  bill  in  equity.] 


207 


141  FOX  V.  MACKRETH. 


[  *  141  ]  *  FOX  w.  MACKRETH , 

PITT  ^.  MACKRETH. 


V2t7i  May,  and  10th,  12t7i,  13t7i,  23rd,  24171,  26t7i  JSTov.  1787, 
a7id  7t7i,  8t7i,  and  llt7i  Dec.  1788,  Line.  Inn  Hall. 

[the  case  and  arguments  are  taken  from  2  BRO.  C.  C.  400.   THE  JUDG- 
MENT FROM  2  COX,  320.] 

\_S.  C,  4  Bro.  P.  C,  Toml.  cd.  258.     See  Hargreave,  Jur.  Arg.  453, 
526;  Reg.  Lib.  1788.     A.  fol.  64.] 

Purchase  by  a  Trustee  for  Sale.] — A  Trustee  for  the  sale  of  es- 
tates for  2yciy'>nsnt  of  debts,  who  purchased  them  himself,  by  taking 
an  undue  advantage  of  the  confidence  reposed  in  him  by  the  set- 
tlor, and  previous  to  the  completion  of  the  contract  sold  them  at  a 
highly  advanced  x>i'ice,  decreed  to  be  a  trustee,  as  to  the  sum  pro- 
duced by  the  secoyid  sale,  for  the  settlor. 

This  cause  came  on  by  appeal  from  the  Rolls. 

The  original  bill  was  filed  in  June,  1781,  by  the  plaintiff,  James 
Fox,  Esq.,  against  Robert  Mackreth,  John  Dawes,  and  John  Baynes 
Garforth,  Esqrs.  The  supplemental  bill  was  by  William  Morton 
Pitt,  Esq.,  and  James  Farrer,  trustees  of  the  estate  and  effects  of 
James  Fox,  against  the  same  defendants,  to  have  the  benefit  of  the 
former  suit. 

The  material  part  of  the  prayer  of  the  original  bill  was,  that  the 
sale  of  the  plaintiff's  estates  in  the  county  of  Surrey,  made  to  Thomas 
Page,  Esq.,  might  be  declared  to  have  been  made  in  trust  for  the 
plaintiff,  and  that  Mackreth  and  Dawes  might  be  declared  to  be  ac- 
countable to  the  plaintiff  for  what  the  estates  were  sold  for  to  Page, 
and  also  for  accounts  of  what  was  due  to  the  defendants  Mackreth 
and  Dawes,  and  upon  what  securities;  and  that  they  might  be 
decreed  to  deliver  up  the  securities,  the  plaintiff  offering  that  they 
should  be  at  liberty  to  retain  respectively,  out  of  the  purchase-monies 
208 


FOX  V.  MACKRETH.  *  143 

«)f  the  estates,  what  should  bo  found  justly  duo  to  them 
from  the  *  plaintiff,  and  an.  account  of  monies  due  to  the  [  *  142  ] 
defendants,  on  account  of  annuities  granted  by  the  plain- 
tiff to  the  defendants,  the  plaintiff  offering  that   the    defendants 
should  be  at  liberty  to  retain  the  sum  found   due   out    of   the    said 
purchase-monies. 

The  circumstances  of  the  case  made  against  the  principal  defend- 
ants, Mackreth  and  Dawes,  as  taken  from  the  bill,  answer,  and  evi- 
dence, appear  to  bo  these: — 

That  the  plaintiff  Fox,  being  seised  in  tail  of  an  estate  atHorseley 
and  elsewhere,  in  the  county  of  Surrey,  subject  to  an  estate  for  life, 
in  some  parts  thereof,  to  his  mother  for  her  jointure  in  lieu  of  dower, 
and  likewise  seised  or  possessed  of  copyhold  and  leasehold  estates 
in  the  same  county,  and  also  entitled  to  several  other  estates  in  ex- 
pectancy or  for  life  only,  had  before  he  came  of  age,  embarked  in  a 
very  expensive  course  of  life,  and  was  reduced  to  great  distresses, 
and,  under  these  circumstances,  had  procured  money  by  granting 
annuities,  and  engaging  his  friends  who  were  of  age,  in  bonds  and 
judgments  for  securing  the  payment  of  them;  and  his  friends,  being 
acquainted  with  his  situation,  proposed,  that  as  soon  as  might  be 
after  he  should  attain  his  age  of  twenty-one  years,  he  should  suffer 
a  recovery  of  the  Surrey  estate,  which,  or  a  competent  part  thereof, 
should  be  conveyed  to  trustees,  to  be  sold  for  the  payment  of  his 
debts,  and  redeeming  the  annuities  for  which  he,  and  his  friends  on 
his  behalf,  had  engaged;  and  he  attained  his  age  of  twenty-one  in 
the  month  of  August,  1777,  and  was  very  soon  afterwards  (in  the 
latter  end  of  that  or  the  beginning  of  the  next  month)  introduced 
to  the  defendant  Mackreth  (who  usually  supplied  young  men  of  for- 
tune with  money  in  their  distresses),  and,  on  account  of  the  plain- 
tiffs inability  to  make  a  security  by  mortgage,  as  a  recovery  could 
not  be  suffered  till  Michaelmas  Term,  it  was  agreed  that  the  defend- 
ants Mackreth  and  Dawes,  should  supply  the  plaintiff  with  the  sum 
of  5100Z.,  upon  the  plaintiff's  granting  two  annuities  of  500Z.  and 
350Z.  each  for  his  life;  that  Dawes,  on  the  23rd  of  September,  ad- 
vanced the  5100?.,  for  which  the  following  securities  were 
executed: — A  bond  of  that  *date  by  the  plaintiffs,  in  the  [  *  143  ] 
penal  sum  of  6000?.,  for  securing  to  the  defendant  Dawes 
an  annuity  of  500?.,  for  the  life  of  the  plaintiff;  a  warrant  of  attor- 
ney of  even  date  to  confess  judgment  on  the  said  bond;  and  an  in- 
denture tripartite,  between  the  plaintiff  of  the  first  part,  Dawes  of 

14   WHITE   ON    EQUITY.  209 


*  14i  FOX  V.  MACKRETir. 

the  second  part,  and  Gar  forth  of  the  third  part,  whereby  lands  in  the 
county  of  York,  of  which  the  plaintiff  was  seised  for  life,  were  con- 
veyed to  Garforth,  for  securing  the  payment  of  the  annuity  of  500Z. 
to  Dawes.  The  annuity  of  SoOl.  was  secured  by  a  similar  bond  of 
the  same  date,  warrant  of  attorney  to  confess  judgment  thereon,  and 
a  similar  conveyance  of  the  same  lands  to  Garforth,  for  better  secur- 
ing the  same.  In  the  annuity  of  500Z.,  Mackreth,  in  his  answer, 
admitted  he  was  interested  with  Dawes,  but  denied  that  he  was  so 
in  that  of  350Z. 

la  Michaelmas  Term,  1777,  a  recovery  was  sufiered  of  the  free- 
hold pari  of  the  Surrey  Estates,  by  which  they  were  vested  (sub- 
ject to  the  mother's  estate  for  life  in  a  part  thereof)  in  Oliver  Farrer, 
in  trust  to  convey  the  same  in  such  manner  as  the  plaintiff  should 
direct,  Mr.  Farrer  having  agreed  to  act  as  a  trustee  for  the  purpose 
of  selling  the  same  and  discharging  the  debts,  together  with  and 
under  the  direction  of  two  of  the  plaintiff's  friends  (who  appear  to 
have  been  Lord  Ligonier  and  Lord  Grantley),  if  they  could  be 
prevailed  upon  to  accept  the  trust.  In  December,  1777,  the  plain- 
tiff, being  threatened  with  an  arrest  for  the  sum  of  20007.  by  the 
holder  of  bills  of  exchange  drawn  by  the  plaintiff  while  at  Paris, 
applied  to  the  defendant  Mackreth,  who  agreed  to  lend  the  plain- 
tiff 3000/.  on  mortgage  of  the  Surrey  estates;  upon  which  mort- 
gage deeds,  dated  22nd  and  23rd  of  this  month,  were  accordingly 
prepared  and  executed.  At  the  time  of  the  execution  of  these 
deeds,  it  was  proposed  that  the  denfendant  Mackreth  should  be  a 
tnastee  with  Farrer  for  payment  of  the  debts  and  redeeming  the 
annuities,  when  the  defendant  Mackreth  proposed  the  defendant 
Dawes  for  that  purpose,  as  being,  from  the  course  of  his  business, 

well  acquainted  with  man}  of  the  persons  who  had  pur- 
[  *  144  ]  chased  the  plaintiff's  other  annuities,  and  could  *assist 

in  purchasing  them  at  a  cheaper  rate  than  Mr.  Farrer; 
which  was  assented  to  by  the  plaintiff,  upon  an  assurance  that  noth- 
ing should  be  done  without  Mr.  Farrer  being  consulted  and  approv- 
ing thereof. 

In  the  same  month  the  plaintiff  delivered  to  the  defendant 
Mackreth  a  particular  or  rental  of  the  estate  in  Surrey,  made  by 
Thomas  Jackman,  by  which  it  appeared  that  the  rents  of  the  houses 
and  cottages  on  the  premises  amounted  to  283/.  Is  ,  and  those  of 
the  lauds  to  979Z.  14s.  (subject  to  the  mother's  jointure,  which  was 
stated  at  240Z.  a  year),  and  the  timber  was  valued  in  the  rental  at 
210 


FOX  V.  MACKRETII.  *  145 

4000/.,  and  the  whole  was  valued  at  45,000Z.  It  was  also  in  evidence, 
that  Mackreth  sent  down  a  man  of  the  name  of  Hampton  to  view 
the  estate,  who  was  there  a  week,  but  what  valuation  he  made,  or 
'whether  the  same  was  communicated  to  Mackreth,  did  not  appear. 

A  trust  deed  was  prepared  by  Garforth,  reciting  the 'mortgage,  by 
which  the  estates  were  conveyed  to  Mackreth  and  Dawes  (subject 
to  Mackreth's  mortgage  and  the  annuity  to  Dawes)  in  trust  to  sell 
or  mortgage  the  same,  and  to  pay  the  debts  and  redeem  the  annu- 
ities granted  by  the  plaintiff.  These  deeds  being  sent  to  Mr.  Farrer, 
he  made  some  objections  thereto,  ou  account  of  the  sums  advanced 
as  the  prices  of  the  annuities,  not  being  scheduled  as  gross  sums 
carrying  interest  at  5Z.  per  cent.,  and  also  on  account  of  the  trus- 
tees being  empowered  to  sell  or  mortgage  the  estates  without  the 
intervention  of  Mr.  Fox.  And  it  being  afterwards  agreed,  that 
Mackreth  should  pay  off  Dawes,  and  advance  some  further  sums,  a 
deed  poll  was  prepared,  calculated  for  execution  on  the  16th  Janu- 
ary, 1778,  and  indorsed  on  the  mortgage  deed,  to  secure  such  fur- 
ther sum  of  7000/.,  consisting  of  5100/.,  the  consideration-money 
for  the  annuities  granted  by  the  plaintiff  to  Dawes,  with  212/.  10s. 
interest  thereon,  for  the  quarter's  arrear  due  23rd  December,  1777 
(but  which  was  not  paid  by  Mackreth  to  Dawes  until  the  16th  July, 
1788),  and  51/.  14s.  •9Jd.,  twenty-three  days'  arrear  of  the  said  an- 
nuities, from  23rd  December  to  said  16th  January,  and 
1635/.  15s.  2|c/.  paid  to  the  plaintiff  on  the  *16th  January,  [  *  145  ] 
1778.  A  new  trust  deed  was  also  prepared,  in  which  this 
deed-poll  was  recited,  and  the  3000/.  and  7000/.  made  the  first  charges 
on  the  estate. 

On  the  16th  January,  1778,  the  plaintiff  Fox  and  the  defendant 
Mackreth  dined  together  at  the  houses  of  the  defendant  Garforth, 
foF  the  purpose  of  executing  these  deeds,  and  after  dinner,  and  before 
the  plaintiff  had  executed  the  deeds,  a  convei;sation  arose,  in  which 
it  was  proposed  that  the  defendant  Mackreth  should  become  the 
purchaser  of  the  estate,  and  Jackman's  valuation  of  45,000/.  was 
mentioned  by  the  plaintiff  as  a  fair  price,  which  was  objected  to  by 
Mackreth,  considering  the  value  put  thereby  upon  the  houses  and 
lands;  upon  which  the  defendant  made  a  calculation  of  the  houses 
at  fourteen  years'  purchase,  and  the  lands  at  thirty,  together  with 
the  household  furniture,  valued  at  500/.,  and  the  timber  at  4,000/. 
(on  which  last  two  articles  they  agreed),  amounting  to  37,853/.  14s. 
The  plaintiff  afterwards  offered  to  sell  the  estates  to  the  defendant 

211 


*  146  ,        FOX  V.  MACKRETH. 

for  42,000?.,  upon  which  the  defendant  said  he  would  split  the  diff- 
erence, and  give  39,500?.  for  the  same,  but  would  not  give  more;  and 
the  plaintiff  not  agreeing  to  accept  the  terms,  the  trust  deeds  were 
then  executed  by  the  plaintiff. 

After  the  deeds  were  executed,  the  conversation  was  renewed,  and 
the  plaintiff  expressing  some  concern  with  respect  to  his  mother's 
jointure,  in  case  he  should  accept  the  defendant's  terms,  the  defend- 
ant offered  the  39,500?.,  and  to  subject  himself  to  the  payment  of 
the  plaintiff's  mother's  jointure,  in  case  she  should  survive  him;  upon 
which  the  parties  agreed,  and  the  defendant  Garforth  (who  had  been 
absent  during  the  greater  part  of  the  treaty)  was  called  in,  and  drew 
up  a  memoradum  of  such  agreement,  by  which  the  money  was  to  be 
paid  on  or  before  the  25th  of  March  next,  till  which  time  the  plain- 
tiff was  to  receive  the  rents  and  profits,  and  then  convey  the  estate 
to  the  defendant  Mackreth;  and  about  twelve  o'clock  at  night  this 
memorandum  was  signed  by  the  plaintiff,  upon  which  the  trust  deed 
was  cancelled. 

Oo  the  28th  of  the  same  mouth,  articles  for  the  purchase 
[  *  146]  *  were  executed  by  both  parties.  On  the  24th  April  fol- 
lowing, the  plaintiff,  and  Anna  Fox  his  mother,  on  the 
2nd  of  May,  executed  conveyances  of  the  estates  to  the  defendant, 
in  consideration  of  39,500?.,  11,097?.  of  which  was  retained  by  the 
defendant,  in  payment  of  the  above  mortgage  of  3000?.,  the  7000?. 
secured  by  the  deed-poll,  and  some  other  sums  charged  by  the  de- 
fendant, as  advanced  to  the  plaintiff;  and  the  defendant  gave  the 
plaintiff  as  a  security  for  the  residue  (being  28,403?.),  a  common 
accountable  receipt;  and  afterwards,  on  the  objection  of  the  plain- 
tiff to  this  as  the  only  security  for  the  money,  the  defendant  wrote, 
on  the  same  piece  of  paper  which  contained  the  accountable  receipt, 
the  following  charge: — "25th  April,  1778.  I  do  hereby  charge'  all 
my  estates  in  the  county  of  Surrey  with  the  payment  of  the  above 
sum  of  28,403?.  and  interest."  At  the  time  of  signing  the  above, 
the  defendant  had  no  estates  in  the  county  of  Surrey  but  those  pur- 
chased by  him  of  the  plaintiff;  and  the  defendant  gave  to  the  plain- 
tiff no  other  security  for  the  residue  of  the  money  than  the  receipt 
and  charge. 

In  the  interval  between  the  execution  of  the  articles  and  that  of 

the  conveyances,  Mackreth  had  treated  with  Thos.  Page,  Esq.,  for 

the  sale  of  the  whole  of  the  said  estate;  and  on  the  21st  March,  Mr. 

Page  agreed  to  give  50,500?.  for  the  same,  but  no  article  was  entered 

212 


FOX  V.  MACKRETII.  *  147 

into  between  him  and  the  defendant  till  the  30th  of  April  following. 
Immediately  after,  Page  was  lot  into  possession,  and  was  to  receive 
the  rents  and  profits  from  Lady-day  then  last.  The  treaty  with 
Page  was  totally  unknown  to  the  plaintiff,  when  he  executed  the 
conveyance  to  the  defendant. 

The  plaintiff  drew  upon  the  defendant  for  several  sums  on  account 
of  the  purchase  money;  and  in  October,  1778,  having  sent  for  an 
account,  the  defendant  drew  one  out,  by  which  he  made  a  balance 
remaining  in  his  hands  of  773Z.  18s.  9d. ;  but  admitted  in  his 
answer  that  he  had  therein  charged  moneys  unpaid  as  the  supposed 
amount  of  two  annuities  and  the  arrears  thereof  then  unredeemed; 
and  afterwards,  in  May,  1771),  having  then  settled  the 
*  said  annuities,  he  sent  the  plaintiff  another  account,  in  [  *  147] 
which  he  made  the  balance  616?.  17s.  above  the  other 
balance  of  773?.  18s.  9d.  In  June,  1779,  the  plaintiff,  being  again 
in  distress,  applied  to  the  defendant,  when  he  advanced  him  2100Z. 
upon  an  annuity  of  350?.  a  year  for  plaintiff's  life,  secured  by  a  bond 
in  the  penal  sum  of  4200?.,  and  warrant  of  attorney  to  enter  up 
judgment  on  the  same. 

Upon  discovery  of  the  sale  to  Page,  under  the  circumstances  as 
stated  above,  the  plaintiff  filed  his  bill  (d),  insisting  that  the  defend- 
ant Mackreth,  being  a  trustee  for  him  under  the  trust-deed  for  pay- 
ment of  debts,  it  was  his  duty  to  sell  the  same  for  the  advantage  of 
the  plaintiff:  and  if  he  purchased  for  himself  (which  the  plaintiff'  was 
advised  he  could  not)  it  should  be  for  a  fair  and  adequate  consid- 
eration; that  the  plaiptiff,  having  been  imposed  upon,  ought  to 
have  the  benefit  of  the  sale;  and  that  the  sum  of  7000?.,  mentioned 
in  the  articles  as  due  to  Mackreth,  on  mortgage,  or  the  part  there- 
of estimated  to  be  due  to  the  defendant  as  the  value  of  the  annui- 
ties granted  to  Dawes,  was  a  much  greater  sum  than  they  were 
really  worth  on  a  fair  valuation;  that  no  greater  allowance  ought 
to  be  made  out  of  the  purchase- money  than  the  sums  really  ad- 
vanced, with  interest  from  the  time  of  advancing  the  same;  that 
Mackreth  had  not  discharged  the  annuities  granted  by  the  plaintiff', 
but  the  plaintiff  continued  liable  to  the  same;  and  that  at  the  time 
he  granted  the  last  annuity  of  350?.,  there  was  money  in  the  de- 
fendant's hands,  or  the  defendant  was  accountable  to  the  plaintiff 
for  larger  sums,  as  he  then  had  in  his  hands  the  sums  for  which  he 

(rf)   In  1871. 

213 


*  148  FOX  V.  MACKRETII. 

sold  the  plaintiff's  estate,  beyond  the  sum  of  39,500Z.,  and  therefore 
prayed  as  is  before  stated. 

The  defendant  Mackreth,  by  his  answer,  insisted  on  the  fairness 
of  the  transaction,  and  that  the  price  at  which  he  bought  the  es- 
tate was  an  adequate  price,  though  he  expected  to  have  some  bene- 
fit by  selling  it  out  in  parcels;  but  that  the  purchaser,  Mr.  Page, 
having  an  estate  in  the  neighbourhood,  gave  a  larger  price  than  it 

was  worth  to  other  persens.     He  admitted  that  he  had  in 
[  *  148  ]  his  hands  a  *  balance  of  617Z.  13s.  of  the  purchase-money, 

which  he  claimed  to  retain,  on  account  of  the  plaintiff  be- 
ing only  tenant  for  life  in  a  small  part  of  the  estate  conveyed  to 
the  defendant,  and  773Z.  18s.  9d.  the  balance  of  the  accounts  sent  to 
the  plaintiff  in  October,  1778;  and  the  defendant  Mackreth  further 
said,  that  on  the  30th  of  August,  1779,  part  of  the  estate  being  dis- 
covered to  be  copyhold,  the  defendant  applied  to  the  plaintiff  to 
execute  a  letter  of  attorney,  to  surrender  such  copyhold  premises  to 
the  defendant,  which  he  readily  agreed  to,  and  signed  such  letter  of 
attorney;  and  that  Mr.  Page,  the  purchaser,  in  November,  1779, 
having  raised  a  svim  of  money  by  mortgage  of  part  of  the  said  es- 
tates, and  afterwards  having  occasion  to  raise  money  by  mortgage 
of  other  parts  of  the  said  estates,  and  the  solicitor  for  the  person 
advancing  the  money  requiring  to  have  the  original  deeds  of  the  22nd 
and  23rd  December,  1777,  and  the  conveyance  from  the  plaintiff  to 
the  defendant  or  duplicates  thereof,  the  defendant  applied  to  the 
plaintiff  to  execute  other  parts  of  the  deeds,  which  he  agreed  to, 
and,  together  with  his  mother,  executed  the  same  without  expressing 
himself  dissatisfied  with  the  purchase  made  by  the  defendant  (but 
it  was  in  evidence  that  Mr.  Farrer  only  consented  to  the  plaintiff's 
executing  the  same  under  a  proviso  that  the  same  should  not  be 
considered  as  a  confirmation),  which  acts  of  the  plaintiff  the  de- 
fendant insisted  would  operate  as  confirmations  of  the  transactions. 
The  cause  was  heard  at  the  Rolls,  before  his  Honor  Sir  Lloyd 
Kenyon,  the  then  Master  of  the  Rolls,  on  the  26th,  27th,  and  29th 
of  June,  and  on  the  [4th],  13th,  14th,  and  26th  of  July,  1786,  on 
which  last  day  his  Honor  was  pleased  to  make  his  decree,  whereby 
he  declared  that  undue  advantage  was  taken  by  the  defendant 
Mackreth  of  the  confidence  reposed  in  him  by  the  plaintiff  Fox,  and 
that  therefore  the  defendant  Mackreth  ought  to  be  considered  as  a 
trustee  as  to  all  the  estates  and  interests  comprised  in  the  con- 
veyance of  the  23rd  and  24th  days  of  April,  1778,  for  the  said 
214 


FOX  V.  MACKRETir.  *  149 

pliiintifF  Fox,  after  t^^o  execution  of  the  said  deeds;  and 
ordered  it  to  be  referred  to  the  *  Master  to  take  an  account  [  *  149  ] 
of  the  money  received  by  the  defendant  Mackroth  from 
Page,  and  to  compute  interest  thereon  at  5/.  per  cent.,  from  the 
time  of  receiving  the  same,  and  to  take  an  account  of  the  money 
paid  by  defendant  Mackreth  to  Dawes  on  account  of  the  annuities 
of  500/.  and  300/. ;  and  also  an  account  of  the  money  advanced  by 
Mackreth  on  account  of  the  annuity  of  850/  in  1779  (<?):  and  an 
account  of  money  received  by  Mackreth  on  account  of  the  mort- 
gage in  1778,  and  under  the  contract  for  the  purchase  of  the  es- 
tate (/),  and  compute  interest  on  the  same;  and  that  the  defendant 
Mackreth  should  pay  the  plaintiff  the  costs  of  the  suit  in  respect 
of  his  insisting  on  the  conveyance  of  the  23rd  and  24th  of  April, 
1778,  as  a  conveyance  for  his  own  benefit:  and  granted  an  injunc- 
tion against  the  defendant  Mackreth,  to  restrain  him  from  proceed- 
ing at  law  touching  any  matter  in  question  in  the  cause  (g) ;  and 
reserved  further  consideration. 

From  this  decree  there  was  an  appeal,  by  the  defendant  Mackreth 
only,  to  the  Lord  Chancellor,  which,  came  on  to  be  heard  in  Michael- 
mas Term,  1787. 

Mr.  Mansfield,  Mr.  Scott,  Mr.  Lloyd,  and  Mr.  Mitford  were  heard 
for  the  i-espondent  in  support  of  his  Honor's  decree.  His  Honor 
declared,  as  the  foundation  of  his  decree,  that  an  undue  advantage 
had  been  taken  of  the  confidence  placed  in  Mackreth  by  Fox,  and 
upon  that  ground  directed  the  proper  accounts  to  be  taken.  In  that 
decree,  Dawes  and  Garforth  have  acquiesced.  Mackreth,  the  prin- 
cipal defendant,  only  disputes  the  justice  of  it;  nor  is  it  to  be  won- 
dered at  that  he  does  so,  for,  whilst  the  decree  stands  in  force,  his 
character  stands  materially  affected.  The  parties  on  the  other  side 
are  anxious  to  maintain  a  decree,  not  merely  on  account  of  the  larore- 
ness  of  the  property,  but  as  a  useful  precedent.  (The  counsel 
enumerated  the  facts  of  the  case,  as  before  stated.)  Upon  the  facts 
as' stated,  his  Honor  thought  Mackreth  had  abused  the  confidence 
reposed  in  him  by  Fox,  and  ought,  with  respect  to  the  purchase,  to 
be  considered  as  a  trustee  for  him,  and  that  Fox  ought  to  have  the 

{e)  "And  the  particular  times  when,  and  in  what  manner,  such  sums  were 
advanced."     Reji.  Lih. 

(/)  "Or  the  conveyance  tliereof,  and  to  state  the  particular  times  when,  and 
to  whom  such  sums  were  paid,  and  the  account  in  which  the  same  were  in- 
cluded resjiectively."  Ivejf.  Lih. 

(.'/)  This  injunction  was  dissolved  by  Lord  Thurlow;  but,  as  he  afterwards 
confessed,  by  mistake :  see  Kc  parte  Laccy,  6  Ves.  627. 

215 


*  1 51  FOX  V.  MACKRETH. 

advantage  of  the  transactioa  with    Page.     The  circum- 
[  *  150  ]   stances  are  *  certainly  such  as  to  show  an  implicit  conli- 

dence  placed  by  Fox  in  Mackreth  and  Garforth,  who  ap- 
pears to  have  been  attorney  for  Mackreth.  Wherever  the  transac- 
tion would  bear  the  light,  the  deeds  -were  sent  to  Farrer,  the  plain- 
tiff's trustee;  where  it  would  not,  it  was  kept  a  profound  secret  from 
him,  although  Mackreth  had  promised  that  nothing  should  be  done 
without  the  latter  being  consulted.  That  Garforth  was  the  agent  of 
Mackreth,  not  of  Fox,  is  apparent:  he  was  privy  to  the  whole  trans- 
action with  Page.  If  he  was  the  agent  of  Fox,  he  should  have  given 
him  notice  of  that  transaction;  if  he  was  not,  the  utmost  confidence 
is  given  to  Mackreth;  Fox  takes  his  word  in  everything;  he  gives 
up  to  his  opinion  Jackman's  valuation  and  his  own  judgment;  and 
at  twelve  o'clock  at 'night  sells  him  the  estates  at  his  own  price, 
which  was  10,000Z.  below  Jackman's  valuation.  So  vith  respect  to 
the  furniture;  it  is  sold  at  Mackreth's  valuation,  though  it  included 
five  hundred  pounds'  worth  added  by  Fox  himself  to  the  furniture 
left  by  Lord  Bingley.  Mackreth  through  the  transaction  affected 
to  be  the  friend  of  Fox,  and,  by  his  conversation  with  Farrer,  ad- 
mitted himself  to  be  a  trustee  for  Fox;  for  that  conversation  can- 
not be  explained  by  Mackreth's  being  to  have  the  purchase  money 
to  pay  debts,  as  that  agreement  did  not  subsist  at  the  time,  the 
agreement  at  that  time  only  being  that  the  purchase-money  should 
pay  the  debts  charged  on  the  estate.  Enough  has  been  stated  to 
show  that  Fox  was  in  the  situation  to  be  the  object  of  fraud,  that  a 
trust  was  reposed  in  Mackreth,  and  that  fraud  has  been  practised 
upon  him;  and,  therefore,  sufficient  to  maintain  the  declaration  in 
the  decree.  Biit  it  has  been,  and  will  be  again,  endeavoured  to  pro- 
tect Mackreth,  by  arguing  that  the  case  does  not  fall  under  any  of 
the  heads  of  fraud.  To  this  it  has  been  answered  by  his  Honor, 
that  it  was  such  a  transaction  as  could  not  be  maintained,  but  that 
it  did  fall  within  the  cases  of  young  men,  having  estates  in  posses- 
sion and  in  reversion,  and  dealing  with  a  man  of  business,  and  of 

advantage  taken  of  their  distress,  except  that  this  case  had 
[  *  151  ]  the  pre-eminence,  as  being  the  case  where  *  confidence  had 

been  so  much  abused.  It  was  also  argued,  that  inadequacy 
of  price  was  not  a  ground  for  setting  aside  the  bargain,  though 
it  has  been  frequently  decided,  that,  where  the  inadequacy  is  very 
great,  that  has  been  a  ground  for  rescinding  the  transaction:  Chest- 
erfield v.  Janssen,  1  Atk.  301;  2  Ves.  125.  The  real  value  of  the 
21G  ' 


FOX  V.  MACKUETU.  *  152 

estate  here  was  50,500Z.,  and  it  is  sold  for  39,500?.;  the  inadequacy, 
therefore,  proves  the  abase  of  confidence;  and,  tljough  it  is  undoubt- 
edly true  that  every  contract  improperly  made  shall  not  be  rescinded, 
vet  a  contract  grossly  inadequate  and  founded  in  breach  of  confi- 
dence will  surely  be  set  aside;  though  the  Court  cannot  affect  the 
strict  rule  of  morality,  andean  onlyenforco  what  Mr.  Madoc/;s  called 
a  technical  morality,  yet,  in  the  case  of  a  trustee  or  a  person  stand- 
ing in  a  situation  of  which  he  can  avail  himself,  the  Court  will  not 
suffer  him  to  derive  advantage  from  that  circumstance.  Here  every 
art  was  used  to  impress  Fox  with  the  idea  that  Mackreth  and  Gar- 
forth  were  his  friends,  though  the  transactions  with  respect  to  the 
annuities  show  them  very  much  otherwise.  Mackreth  certainly  de- 
rived an  advantage  from  his  situation:  Fox  never  was  out  of  his 
debt.  To  deal  with  him  at  all  was  a  fraud  on  the  part  of  Mackreth; 
Osmond  v.  Fitzroy,  3  P.  Wms.  129.  There  was  nothing  like  the 
confidence,  or  the  abuse  ot  the  confidence,  in  Givynne  v.  Heaton,  1 
Bro.  C.  C.  1,  that  there  is  in  the  present  case;  yet  there  the  trans- 
action was  set  aside.  Here  the  confidence  reposed  in  Mackreth  is 
made  use  of  to  induce  a"  confidence  in  Garforth.  The  same  person 
being  employed  on  both  sides,  has  been  considered,  in  the  case  of 
Sir  P.  Jenni)igs  Gierke  v.  Smith,  at  the  Rolls  lately,  as  a  sufficient 
badge  of  fraud  to  set  aside  a  transaction.  Th^re,  Sir  Philip  had 
bought  an  annuity  of  Smith;  the  same  person  was  concerned  as  at- 
torney on  both  sides,  and  had  not  taken  proper  care  of  the  security; 
his  Honor  thought  that  a  sufficient  ground  on  which  to  direct  an 
inquiry.  Then,  with  respect  to  the  confirmations,  none  of  the  facts 
come  within  the  crises  which  have  been  held  to  be  confirmations;  in 
order  to  be  such,  they  must  amount  to  a  release  of  action.  The 
reason  given  in  Chesterfield  v.  Janssen  for  holding  it  a 
confirmation  *  was,  that  Spencer  knew  all  the  transaction,  [  *  152  ] 
and  that  he  was  entitled  to  set  it  aside.  In  the  present 
case  the  suffering  the  duplicates  to  be  made  of  the  deed  is  a  mark  of 
confidence,  but  by  no  means  amounts  to  a  confirmation,  as  it  was 
done  without  any  knowledge  in  Fox  that  he  could  impeach  the 
transaction.  Baugh  v.  Price,  1  Wils.  Exch.  320,  was  a  case  where 
all  the  acts  were  repeated,  yet  held  no  confirmation:  Taylor  y.  Roch- 
ford,  2  Bro.  P.  C.  281.  No  act  can  be  a  confirmation  of  a  preceding 
contract  but  what  is  done  with  full  knowledge  of  that  contract:  Cole 
V.  Gibson,  1  Ves.  503. 

217 


*  153  FOX  V.  MACKRETH, 

Mr.  Ambler,  Mr.  Madocks,  Mr.  Selwyn  (h),  Mr.  Ainge,  and  Mr. 
Hargrave,  for  the  defendant  and  appellant,  Mackreth. — The  Master 
of  the  Rolls  has  decreed  11,000/.  to  be  paid  by  Mackreth  to  Fox. 
We  shall  submit  to  the  Court,  that  his  Honour  has  gone,  in  making 
the  decree,  further  than,  from  any  of  the  cases,  or  from  the  reason 
of  the  thing,  he  ought  to  have  done.  It  will  be  necessary,  in  order 
to  show  this,  to  state  the  progress  of  the  cause.  The  first  bill  was 
tiled  in  the  name  of  Fox,  in  June,  1781,  three  years  after  the  pur- 
chase by  Mackreth;  another  bill  was  tiled  in  February,  1782.  In 
March,  a  motion  was  made  for  an  injunction  to  restrain  Mackreth 
from  proceeding  on  the  annuity  bond.  Mackreth's  answer  was  read 
against  that  application ;  and  your  Lordship  was  of  opinion, 
[  *  153  ]  that  there  should  be  no  injunction^  there  being  *no  sur- 
prise upon  Fox,  nor  any  fraud  imputable  to  Mackreth. 
Then,  for  the  purpose  of  introducing  creditors  into  the  cause,  in 
May,  1782,  an  assignment  is  made  by  Fox  of  his  estate  to  four  trus- 
tees, Mr.  Pitt,  Mr.  Hoare,  Mr.  Oliver,  and  Mr.  James  Farrer,  in 
trust,  to  pay  debts.  In  1781,  Mr.  O.  Farrer  releases  himself,  and 
in  June 'in  the  same  year  a  bill  is  tiled  by  the  three  trustees,  to  have 
the  benefit  of  the  suit  begun  by  Fox:  this  artifice  was  used  in  or- 
der to  have  the  advantage  of  the  plaintiffs  appearing  as  creditors. 
The  cause  came  on  to  be  heard  in  the  same  manner  as  if  brought 

(7()  INIr.  Selwyn  read,  as  part  of  his  speech,  a  note  of  what  the  Lord  Chancel- 
lor {ThurJow)  said  on  discharging  the  order  for  the  injunction,  to  the  following 
purpose: — Lord  ChnnccUor. — It  is  impossible  to  observe,  that  one-fifth  more 
has  been  paid  for  the  estate,  and  not  to  wish  that  the  first  owner  should  have 
the  advantage.  I  have  tried,  on  the  head  of  every  on^  observation,  whether  I 
could  decree  that  Mackreth  should  be  a  trustee  for  Fox,  for  the  difference  of 
value  in  the  estate..  I  attended,  with  great  care,  to  see  whetlier  I  could  find 
any  surprise  on  Mr.  Fox,  but  the  whole  case  begins  and  ends  with  the  circum- 
stance of  an  advantage  being  made  in  point  of  price.  If  Mackreth  had  sold  the 
estate  to  A.  (being  a  trustee  for  Mackreth),  the  case  could  not  have  stood:  but 
Mackreth  lost  the  character  of  a  trustee  when  he  became  a  imrchaser  of  the  es- 
tate. The  rental  was  extended  into  particulars,  for  the  purpose  of  calculating 
the  true  value  of  the  estate.  It  is  not  argued  that  the  rental  was  unfair. 
Jackman's  calculation  was  pressed  by  Fox  upon  Mackreth;  deliberation  was 
had.  and  the  difference  split  between  them.  A  slight  memorandum  was  made 
by  Mr.  Garforth,  who  acted  as  agent  for  Fox;  and  his  memorandum  was  laid 
before  Mr.  P5urton,  at  the  ba^  It  is  not  on  the  28tli  of  .January  that  the  agree- 
ment is  signed  by  Fox;  but  it  is  a  deliberate  act  by  Fox  at  the  distance  of 
twenty-two  days.  The  whole  impeachment  of  the  transaction,  which  is  now 
opened,  is  upon  the  difference  of  price.  It  does  not  appear  to  me,  that,  at  the 
time  of  the  purchase,  a  greater  price'  could  have  been  produced  in  the  common 
course  of  business  of  sale  of  estates. 

This  injunction  was  dissolved  upon  a  clear  mistake:  Ex  parte  Lacey,  6  Ves. 
6:27;  vide  note,  post. 

The  price  given  for  the  estate,  according  to  the  principle  upon  which  the 
case  was  ultimately  decided,  was  immaterial. 

218 


FOX  V.  MACKRETII.  *  154 

by  Fox.  The  decroo  is  wrong,  both  in  the  declaration  and  in  tho 
direction.  We  contend,  first,  that  there  was  no  confidence  reposed 
by  Fox  in  Mackreth ;  secondly,  whether  there  was  a  confidence  re- 
posed or  not,  there  was  no  abuse  of  it;  thirdly,  that  neither  tho  decla- 
ration, facts,  nor  circumstances  support  the  directions.  With  respect 
to  the  first  head,  there  is  no  circumstance  by  which  a  confidence  can 
be  shown  to  have  been  reposed  in  Mackreth.  He  was  only  a  trus- 
tee as  to  the  28,403/.  l^alance,  to  apply  it  in  the  payment  of  debts, 
for  which  sum  he  has  accounted;  certainly  every  trust  implies  a 
confidence,  but  not  such  a  confidence  as  is  meant  in  the  decree,  as  a 
trust  to  be  abused.  If  the  trustee  dees  not  perform  his  trust,  it  is 
a  breach  of  trust,  not  an  undue  advantage  of  his  situation.  Where 
a  person  treats  with  another  without  the  power  of  inquiring  into 
the  value,  and  makes  an  improper  bargain,  that  is  taking  an  undue 
advantage;  but  that  is  not  the  case  of  a  trust.  The  declaration  is, 
that  Mackreth  has  taken  an  undue  advantage  of  his  situation;  and, 
therefore,  is  to  be  considered  as  a  trustee  for  the  plaintiff:  this 
could  refer  only  to  the  purchase,  not  to  the  loan  or  the  annuity,  and 
these  cannot  be  said  to  be  transactions  of  confidence:  farther,  can 
the  purchase  be  so  considered  ?  Two  persons  are  dealing  for  an 
estate.  Mr.  Fox  wants  an  extravagant  price;  Mr.  Mackreth  wants 
to  purchase  at  a  reasonable  one:  both  argued  as  to  the  value.  Fox 
had  a  valuation  as  well  as  Mackreth,  and  a  fair  price  was  given.  If 
so,  the  declaration  cannot  be  right.  Secondly^  the  bill  is 
filed  to  attack  *  every  transaction  between  the  parties,  and  [  *  154  ] 
to  make  the  whole  appear  as  one  system  of  fraud,  yet  if 
they  can  succeed  in  the  point  of  the  purchase,  it  is  all  they  want; 
the  other  circumstances  are  thrown  in  to  give  weight  to  the  main 
point,  that  Mackreth  shall  account  for  11,000/.  received  from  Page: 
that  is,  for  55,000/.  more  than  Jackm^n's  valuation.  The  true 
question  is,  whether  Mackreth  is  a  fair  purchaser  of  the  estate  at 
39,500/.  ?  There  is  no  pretence  that  he  ever  refused  to  let  the  an- 
nuities be  redeemed— two  of  them,  in •  fact  were  redeemed;  nor  is 
there  any  ground  to  quarrel  with  the  loan.  Mackreth  had  no  deal- 
ings with  Mr.  Fox  during  his  minority;  he  did  not  even  know  him 
at  that  time.  The  first  application  to  Mackreth  was  from  Garforth, 
to  buy  an  annuity.  Garforth  was  connected  with  Fox  for  the  pur- 
pose of  borrowing  money.  ^If  none  of  the  articles  themselves  are 
suflficient  to  impeach  Mackreth,  being  taken  together  they  will  not 
do  so.     As  to  the  annuities,  Fox  sought  Mackreth.     In  December, 

219 


*  155  FOX  V.  MACKRETH. 

1777,  be  granted  him  two  annuities,  amounting  to  800Z.  a  year; 
part  of  the  500Z.  a  year  annuity  was  the  property  of  Mackreth,  but 
the  annuity  was  taken  in  the  name  of  Dawes,  and  was  at  six  years' 
purchase.  Fox  had  been  of  age  a  month  before  Mackreth  knew  of 
his  intention  to  suffer  a  recovery  in  the  ensuing  Michaelmas  Term. 
It  is  said,  Mackreth  knowing  this,  should  not  have  entered  into  this 
contract;  but  there  is  no  reason  why  he  should  not.  Fox  had  at 
that  time  only  a  life  estate,  and  could  make  no  security  but  a  grant 
of  an  annuity.  Six  years'  purchase  was  then  allowed  of  as  the 
common  price.  In  a  case  of  Floyer  v.  Sherrard  {l),\>QiorQ  Lord 
Hardivicke,  Hil.,  1740,  Floyer  had  bought  of  Shen-ard  an  annuity 
at  six  years'  purchase,  secured  upon  money  in  the  funds,  in  the 
names  of  trustees.  He  filed  his  bill  against  the  trustees  to  pay  the 
annuity:  the  objection  was,  that  Sherrard  was  a  man  in  distress, 
and  that  only  six  years'  purchase  was  given  for  the  annuity.  Lord 
Hardivicke  said,  this  case  differed  from  that  of  young  heirs,  because 
Sir  B.  Sherrard,  the  father,  was  in  possession  of  the  estate.  A  sale 
of  an  annuity,  not  redeemable,  was  not  an  usurious  trans- 
[  *  155  ]  action;  *  where  they  are  made  redeemable,  the  Court  has 
thought  it  an  evasion  of  the  law.  As  to  the  price  of  an 
annuity,  it  is  the  most  uncertain  thing  in  the  world;  taking  it  upon 
the  highest  calculation,  it  is  only  one  year's  purchase  under  the 
value  and  the  Court  will  not  set  it  aside  on  that  account.  Then  as 
to  the  security;  if  he  had  taken  it  on  the  estate,  it  would  have  been 
good.  It  was  done  on  bond  and  judgment,  without  insurance  of 
the  life.  Every  hardship  which  occurs  in  this  case  is  such  as  must 
occur  in  every  case  of  the  kind.  Then  this  annuity  was  not  re- 
deemable. Lord  Hardwicke's  opinion  on  this  subject  appears  to 
have  been,  that  a  redeemable  annuity  is  usurious  {m). 

[Lord  Chancellor. — I  do  not  believe  that  has  ever  been  decided. 
It  is  certainly  a  ground  to  suspect  a  shift;  but  there  is  no  decided 
case,  that  the  annuity  being  redeemable  will  make  the  j;ransaction 
usurious  (n).] 

With  respect  to  consulting  Farrer,  that  was  not  Mackreth's  busi- 
ness, if  Fox  did  not  choose  so  to  do.  If  it  was  anybody's  business 
to  advise  Fox,  it  was   rather  Farrer's  than  Mackreth's.     The  next 

{I)  Amb.  18. 

(m)  See  Floyer  v.  Sherrard,  Amb.  19. 

\n)  It  is  now  fully  established  that  such  a  transaction  is  legal.  See  Irnham 
V.  Child,  1  Bro.  C.  C.  92;  Lord  Portmore  v.  Morris,  2  Bro.  C.  C.  219,  Amb.  244, 
note  (3),  Blont's  edit. 

220 


FOX  V.  MACKRETII.  *  150 

transaction  is,  the  recovery  suffered  in  Michaelmas,  1777;  the  legal 
estate  was  by  it  vested  in  Farrer,  to  protect  it  against  the  annui- 
tants and  creditors.  He  was  mistaken  with  respect  to  this  matter, 
for  a  judgment  creditor  could  have  taken  out  execution  against  the 
estate  of  the  cestui  que  trust,  the  same  as  if  it  was  a  legal  estate. 
As  to  the  application  for  the  loan  of,  first  2000/.,  then  3000Z.,  what 
ground  is  there  to  quarrel  with  that?  In  that  transaction  Farrer 
was  consulted;  he  was  present  at  the  execution  of  the  mortgage 
deed,  and  proves  the  payment  of  the  money.  Two  objections  are 
made  to  it;  first,  that  Mackreth  took  the  legal  estate  out  of  Farrer: 
but  Farrer  thought  it  right  that  Mackreth  should  have  the  legal 
estate.  Secondly,  the  other  objection  is,  that  it  was  part  of  the 
system,  and  having  the  legal  estate  would  assist  them  in  carrying  it 
into  execution;  but,  if  it  was  wrong,  Farrer  ought  not  to  have  parted 
with  the  legal  estate;  no  objection  was  made  to  Mackreth's 
being  mortgagee  in  fee.  Again,  it  is  objected  *thatMack  [  *  156  ] 
reth  did  not  then  turn  the  annuity  into  a  debt;  but  Fox 
wanted  the  3000Z.  immediately,  and  it  might  not  occur  to  Mackreth 
to  turn  the  annuity  into  a  debt.  The  next  matter  is,  the  transaction 
with  respect  to  the  trust.  Mackreth  did  not  propose  himself;  this 
was  proved  by  Farrer,  who  says  it  was  proposed  either  by  himself 
or  Fox.  Mackreth  says,  in  his  answer,  that  he  did  not  propose 
himself;  Farrer  declined  being  a  trustee;  and  then  Mackreth  pro- 
posed Dawes,  as  being  acquainted  with  annuity  business.  Farrer 
approved  of  Dawes,  and  Garforth  took  his  instructions  from  Farrer. 
A  copy  of  the  particulars  was  delivered  to  Mackreth.  On  the  6th 
of  January,  1778,  the  draft  of  the  conveyance  was  sent  to  Farrer, 
who  returned  it  on  the  7th,  with  this  observation:  that  it  was  not  as 
he  expected;  for  the  annuities  were  carried  down  to  the  time  of  the 
sale,  whereas  they  were  to  be  turned  into  loans;  and  that  Mack- 
reth and  Dawes  were  to  have  the  whole  authority  to  sell  without 
any  consent  of  Fox.  There  had  only  been  a  conversation,  in  which 
it  had  been  proposed  to  turn  the  annuities  into  a  loan.  Then  as  to 
the  sale  itself.  On  the  16th  of  January,  Fox  and  Mackreth  treat 
on  the  subject.  Macreth  ofPered  37,000Z.,  at  last  39,500/.,  including 
the  furniture,  and  securing  Mrs.  Fox  (the  mother's)  jointure.  This 
agreement  was  put  into  writing  by  Garforth;  no  objection  is  made 
to  the  form  of  the  writing.  On  the  28th  of  January,  the  contract 
was  signed  by  Fox  and  Mackreth.  The  conveyance  was  laid  before 
Farrer,  and  executed  on  the  21th  of  April;  so  that  it  was    iucom- 

221 


*  157  FOX  V.  MACKRETH. 

plote  from  January  to  April.  The  objection  now  taken  and  relied 
upon  is,  that  Mackreth  was  a  trustee,  and,  therefore,  could  not  con- 
tract for  the  purchase  of  the  estate;  but  we  deny  that  he  was  a 
trustee;  and,  even  though  he  were  so,  he  might  purchase  upon  fair 
terms.  They  contend,  on  the  other  side,  that  the  trust  deed  was 
executed,  and  Mackreth  bound  not  to  contract  with  his  cestui  que 
trust.     It  is  true,  it  was  executed  by  Fox;  for  during  the  conversation 

about  the  purchase.  Fox,  not  agreeing  to  sell  at  the  price 
[  *  157  ]  then  offered  by  Mackreth,  executed  the  trust  deed,  but  *con- 

tinued  the  conversation  relative  to  the  purchase,  the  trust 
deed  lying  all  the  while  upon  the  table.  If  the  conversation  had 
ceased,  the  deed  would  have  had  effect;  as  it  was,  it  was  a  nullity. 
Then  how  can  it  operate  as  a  trust?  It  was  a  trust  intended,  if 
they  will — commenced,  but  at  the  same  moment  put  an  end  to — 
never  acted  under,  but  broke  off  immediately.  But,  even  supposing 
him  to  be  a  trustee,  he  might  contract  for  the  estate  so  that  he  did 
but  deal  fairly.  We  admit  that  a  trustee  cannot  purchase  for  his 
own  benefit.  If,  as  a  trustee,  he  had  conveyed  to  a  third  person 
as  a  trustee  for  himself,  that  would  be  void;  but  there  is  no  case 
which  has  decided  that  the  cestui  que  trust  cannot  sell  to  his  trus- 
tee. On  the  contrary,  it  was  done  in  the  case  of  Clarke  v.  Swaile(o) 
before  Lord  Northington,  where  Sir  Samuel  Clarke,  by  the  advice 
of  Swaile,  conveyed  the  estate  in  question  to  him  to  sell  for 
payment  of  debts.  Swaile  endeavored  to  sell  the  estate,  but  could 
not  meet  with  a  purchaser.  Swaile  afterwards  treated  for  and  pur- 
chased the  estate,  which  was  conveyed  to  him  at  a  fair  price,  and 
the  money  was  applied  in  payment  of  Sir  Samuel  Clarke's  debts. 
Another  deed  was  afterwards  executed  on  account  of  a  variance  in 
the  description  of  the  estate,  and  a  third,  occasioned  by  a  variance 
of  the  boundaries.  This  last  was  executed  by  Sir  Samuel  Clarke 
and  Robert,  his  brother.  Sir  Samuel  died,  and  Robert  (now  Sir 
Robert)  filed  his  bill,  on  the  ground  of  a  confidence  being  placed 
by  Sir  Samuel  in  Swaile  as  his  attorney,  and  that  his  circumstances 
were  such  that  he  durst  not  quarrel  with  him.  Lord  Northington 
said,  as  to  the  cestui  que  trust  dealing  with  the  trustee,  he  did  not 
much  like  it;  but,  upon  the  whole,  he  did  not  see  any  principle  on 
which  he  could  set  the  transaction  aside.  In  the  present  case  there 
is  no  species  of  fraud;  it  is  not  even  attempted  to  be  stated  in  the 

(o)  2  Eden,  134.     See  also  Coles  f.  Trecothick,  9Ves.  234;  Morse  v.  Koyal, 
12  Ves.  355. 

222 


FOX  ?'.  MACKRETII.  *  159 

bill;  but  thoy  argue,  that,  from  tbo  case  itself,  there  is  an  implied 
fraud;  the  partion  met  for  veiy  different  {)urpose;  there  is  no  colour 
to  say  it  was  to  draw  Fox  into  a  sale  at  an  undervalue.  In  Flayer 
V.  Sherrard  Lord  Hardivicke  relied  on  there  being  noy^ro- 
posal  coming  *from  Floyer.  Then  as  to  the  argument,  [  *  158  ] 
that  Fox  was  in  distress;  he  was  upon  the  eve  of  extri- 
cating himself  from  any  distress  he  might  have  been  in;  he  was  of 
age;  and  there  is  nothing  to  prove  any  weakness  of  mind,  or  inca- 
]iacity  of  any  kind.  He  was  perfectly  competent  to  act.  He  askedi 
4"), ()()()/.,  and  for  that  purpose  produced  Jackman's  valuation. 
Maokreth  objected,  that  it  was  thirty -live  years'  purchase  for  houses 
and  land,  which  was  a  monstrous  price,  and  offered  fourteen  years' 
purchase  for  the  cottages  and  thirty  for  the  land,  amounting  to 
37,000/.  He  afterwards  advanced  to  39,500/.  Fox  then  insisted 
on  42,000/.  Fox  had  a  particular.  It  is  said  Mackreth  had  a  val- 
uation; but  not  a  word  of  that  is  in  proof.  Farrer  not  being  pres- 
ent at  the  final  agreement,  is  the  next  head  of  objection.  But  if 
Mr.  Fox  did  not  choose  to  have  him  present,  it  could  not  be  incum- 
bent on  Mackreth  to  send  for  him;  besides,  the  draft  of  the  con- 
veyance was  sent  to  him;  and  if  the  price  was  not  adequate  to  the 
value,  or  there  was  anything  wrong  in  the  contract,  Farrer  should 
have  objected  to  it,  and  have  advised  Fox  not  to  proceed;  on  the 
contrary,  it  appears  by  his  letter  of  the  7th  of  April,  1778,  that  he 
approved  of  the  conveyance,  except  that  he  objected,  in  some  re- 
spects, to  the  mode,  and  to  the  money  remaining  in  the  hands  of 
Mackreth  for  payment  of  Fo'x's  debts;  but  to  the  purchase  itself 
Farrer  never  objected.  With  respect  to  the  money  remaining  in 
Mackreth's  hands,  that  does  not  go  to  the  merits  of  the  case,  though 
the  gentlemen  on  the  other  side  have  treated  it  as  a  badge  of  fraud. 
Mackreth  accounted  for  the  application  of  every  shilling  of  the 
money,  with  interest  for  the  time  it  remained  in  his  hands.  "We 
have  no  objection  to  an  account  being  decreed  with  respect  to  the 
application  of  the  money.  Then  with  respect  to  the  confirmations, 
they  are  very  strong.  We  do  not  dispute  the  principle,  that  whilst 
the  distress  continues  subsequent  acts  shall  not  be  held  to  be  con- 
firmations. It  appearing  upon  the  sale  to  Page,  that  part  of  the 
estate  which  had  been  sold  as  freehold  really  was  copyhold. 
Fox,  on  the  19th  of  August,  1779,  executed  a  warrant  of  *at-  [  *  159  ] 
torney  to  surrender  the  same.  This  was  not  clandestinely, 
but  openly  applied  for;  it  was  a  conveyance  of  part  of  the   estate 

223 


*  IGO  FOX  V.  MACKRETH. 

which  was  not  conveyed  before.  He  afterwards  executed  duplicates 
of  the  deeds.  The  purchasers  from  Page  in  parcels  wishing  to  have 
original  deeds,  Farrer  made  no  objection,  if  they  would  indorse 
upon  the  deeds  that  they  were  duplicates. 

\^Lord  Qhancellor. — He  expressly  stipulated  that  the  execution  of 
these  deeds  should  not  be  a  confirmation]. 

The  real  cause  of  the  suit  is,  that  Mr.  Page  has  given  50,500?. 
for  the  estate.  Mr.  Fox  rested  under  the  sale  till  1781,  when  that 
•  sale  was  discovered;  but  an  advanced  price  being  afterwards  ob- 
tained is  no  reason  for  setting  aside  a  previous  fair  sale  of  lands. 
To  assert  that  it  is,  would  be  too  much,  where  there  is  no  fraud. 
The  price  of  50,500Z.  paid  by  Page  was,  in  fact,  a  pretium  afPec- 
tionis;  it  was  5500Z.  more  than  Jackman  had  valued  it  at,  or  Fox 
ever  thought  of  getting  for  it.  Having  shown,  then,  that  Mackreth 
was  no  trustee,  and  that  the  separate  acts  are  fair,  there  can  be  no 
fraud  in  them  taken  collectively;  yet  the  argument,  juncta  juvant, 
is  relied  on  in  this  case.  There  is  only  one  case  in  which  that 
argument  has  prevailed;  indeed,  it  is  only  fit  to  have  a. popular 
effect,  not  to  be  used  in  a  court  of  justice.  It  only  applies  to  a  case 
made  use  of  in  circumstances  which  all  terminate  in  one  point,  and 
which  cannot  be  accounted  for  any  other  way.  It  is  said,  the  cir- 
cumstances in  this  case  are  all  linked  in  one  chain — that  they  all 
tended  to  the  making  an  unreasonable  purchase;  but  the  other  side 
have  not  been  able  to  connect  them.  The  treatise  for  the  annui- 
ties and  the  purchase  are  separate  and  unconnected;  therefore  it  is 
to  be  hoped  that  the  arguments  used,  viz.,  that  although  the  sepa- 
rate articles  were  not  sufficient  to  set  aside  the  transactions,  yet  that 
altogether  they  are  sufficient,  will  meet  the  same  fate  here  that  it 
did  in  Parliament  in  the  case  alluded  to  (p),  and  that  this  Court 
will  reverse  the  attainder  and  restore  Mr.  Mackreth  in  blood. 

Mr.  Mansfield  .in  reply.  —It  is  not  to  be  denied  that  the 
[  *  160  ]  large  price  at  which  the  estate  has  been  sold  to  Mr.  *Page 
is  the  cause  of  the  present  suit.  It  is  that  advance  of 
price  which  affords  the  strongest  evidence  of  the  purchase  by 
Mackreth  being  fraudulent.  Mackreth  and  Garforih  are  to  many 
intents  one  and  the  same.  The  decree  against  Mackreth  is,  that 
he  shall  deliver  up  all  papers  which  are  in  his  hands.  The  present 
case  contains  fewer  contested  facts  than  generally  occur  in  similar 
matters;  and  the  remedy  which  lies  with. the  Court  is  a  very  evident 
(p)  The  case  alluded  to  is  that  of  Lord  Strafford. 

224 


FOX  V.  MACKRETH.  *  161 

one.  It  has  been  argued  that  the  Court  cannot  enforce  an  absolute, 
but  only  a  technical  morality,  I  know  of  no  such  term  as  "techni- 
cal morality"  that  has  ever  been  applied  in  this  or  any  other  case; 
but  where  one  person  has  obtained  an  unfair  advantage  over  an- 
other, the  province  of  a  Court  of  equity  is  to  give  the  latter  redress. 
Lord  Coke,  in  his  First  Institute,  has  very  shortly  defined  the  office 
of  this  Court  to  extend  to  cases  of  "covin,  accident,  and  all  deceit 
for  which  there  is  no  remedy  in  a  court  of  law."  AVhat,  then,  is 
the  true  question  in  the  present  case?  The  Master  of  the  Rolls 
lias  founded  his  decree  in  a  confidence  reposed  by  Fox  in  Maekreth. 
The  question  is  only  as  to  the  inference  to  be  drawn  from  the  facts. 
In  order  to  make  out  the  confidence  reposed  by  Fox  in  Mackretb,  a 
few  circumstances  are  to  be  attended  to.  Mr.  Fox  came  of  age  in 
August,  1777.  Very  soon  after  that  (in  September,,  1777)  the  con- 
nexion between  him  and  Maekreth  began.  The  first  step  was  the 
purchase  of  two  annuities,  at  six  years'  purchase;  then  the  loan  of 
3000Z.  on  mortgage  of  the  Surrey  estate ;  then  Maekreth  engages  to 
become  a  trustee  to  sell  the  estate  for  payment  of  debts,  apparently 
with  no  other  intention  than  to  relieve  Fox's  necessities.  On  the 
16th  of  January  they  met  to  execute  the  trust  d^ed;  but  the  meet- 
ing terminated  in  the  agreement  for  the  sale  of  the  estate.  On  the 
4th  of  April  there  is  a  conveyance  of  the  estate,,  and  Fox  has  nothing 
to  show  for  the  balance  of  28,403?.  but  Mackreth's  accountable  re- 
ceipt and  charge  of  the  money  on  the  Surrey  estate.  On  the  21st 
of  March  Maekreth  had  sold  the  estate  ro  Page  for  50,500/.  To- 
wards the  close  of  1778  he  had  lent  Fox  lOOOZ. ;  in  June, 
1779,  *  there  was  a  treaty  fox  an  annuity,  part  of  the  con-  [  *  161  ] 
sideration  for  which  was  to  be  the  1000/.  The  account 
made  up  in  1778  is  agreed  on  all  hands  to  be  a  false  one.  In  June, 
1779,  another  account  was  made  up.  Then  Maekreth  applied  for 
duplicates  of  the  conveyances,  which  Fox  complied  with.  These 
are  the  material  facts,  from  which  it  is  impossible  to  doubt  that  the 
fullest  confidence  was  reposed  by  Fox  in  Maekreth,  and  that  Maek- 
reth did,  on  the  lOth  of  January,  take  an  undue  advantage  of  that 
confidence.  Every  transaction  of  that  day  shows  that  Maekreth 
lepresen ted  himself  as  Fox's  friend.  The  account  given  by  Maek- 
reth, in  his  answer,  relative  to  the  loan  of  3000/.  and  the  annuity, 
is  contradicted  by  the  evidence.  A  full  confidence  is  not  to  be  ex- 
pected to  an  answer  in  general,  which  is  proved  false  in  any  par- 
ticular.    Suppose  it  to  be  true  that  the  proposal  for  the  sale  came 

15    WHITE   ON    EQUITY.  225 


*  162  FOX  V.  MACKRETII. 

on  the  16th  of  January  from  Fox,  how  easy  was  it  for  Mackreth  to 
suggest  that  an  immediate  sale  would  be  better  than  entering  into 
a  trust  deed,  and  to  make  the  formal  proposal  come  from  Fox, 
though  the  suggestion  was  his  own  ?  But  be  this  as  it  may.  no 
just  inference  is  to  be  drawn  from  it  to  the  merits  of  the  cause. 
Fox  entered  into  the  contract  with  Jackman's  valuation  in  his  hand, 
and  at  twelve  o'clock  at  night  drops  his  price  to  39,000Z.  How  is 
this  to  be  accounted  for  but  by  his  confidence  in  Mackreth  ?  If  the 
sale  had  been  fair  and  open,  I  should  be  precluded  from  these  ob- 
servations; but  there  never  was  a  contract  which  was  more  sus- 
picious, from  the  characters  of  the  parties  concerned.  The  coun- 
sel on  the  other  side  have  said,  that,  when  they  were  treating  for 
the  sale,  the  confidence  was  over,  and  that  they  were  in  a  market; 
but  it  is  impossible  a  sale  could  be  negotiated  under  circumstances 
more  private.  It  is  as  near  the  case  of  a  trustee  selling  to  himself 
as  can  possibly  be;  but  still  it  shows  what  opinion  Fox  had  of 
Mackreth.  It  is  highly  probable  that  the  latter  had. the  sale  in  his 
contemplation  when  he  made  the  appointment.     This  is  rendered 

probable  by  his  having  a  valuation.  This  observation  has 
[*  162  J  received  no  answer,  except  that  it  *was  natural,  that,  in 

order  to  sell  as  a  trustee,  he  should  have  a  valuation;  but 
no  notice  was  given  to  Fox  of  that  valuation  by  Hampton.  Fox 
and  his  agents  were  kept  in  the  dark  as  to  that  survey.  Mr. 
Fox  came  to  Garforth's  to  meet  Mackreth  as  a  friend,  where  Mack- 
reth, having  in  his  possession  a  valuation,  and  concealing  that  fact, 
induced  Fox  to  sell  for  5500Z.  less  than  the  only  valuation  he  had. 
If  there  was  nothing  more  in  the  case,  Mackreth  ought  not  to  retain 
the  great  advantage  he  has  made.  As  a  friend,  Mackreth  should 
have  let  Fox  know  he  had  sold  the  estate  to  him  for  11,000Z.  less  than 
he  (Mackreth)  had  contracted  to  sell  it  for  to  Page.  Then  Fox 
parts  with  the  estate  on  a  bare  accountable  receipt  and  a  charge 
upon  the  estate.  The  money  is  not  deposited  in  the  hands  of  any 
banker,  and  the  estate  is  conveyed  to  Page  without  any  notice  of 
the  charge,  which  made  an  end  of  the  charge.  This  plainly  shows 
that  Fox  trusted  entirely  to  Mackreth.  The  settlement  of  the  ac- 
count is  another  mark  of  the  most  implicit  confidence,  and  the  whole 
transaction  as  to  the  loan  and  the  annuity  proves  the  same;  but  the 
gentleman  on  the  other  side  say,  that  the  accumulation  of  the  facts 
is  immaterial,  and  that  the  application  of  juncta  juvant  ought  to 
have  no  weight.  If  it  was  proved  that  the  transaction  of  the  16th 
226 


FOX  V.  MACKRETIl.  *  1G3 

of  January  was  perfectly  fair,  I  allow  thoir  argument  would  apply; 
but  whilst  the  groat  queRtioa  of  evidence  is  with  respect  to  the  fair- 
ness of  the  transaction  of  the  10th  of  January,  it  is  material  to 
show  the  complexion  of  the  whole  transaction  taken  together,  and 
especially  the  power  Mackreth  had  over  Fox.  This  has  the  more 
weight,  because  it  is  incumbent  on  Mackreth  to  prove  that  the  trans- 
action of  the  16th  of  January  was  fair  and  honest.  To  whom  is  it 
to  be  imputed  but  to  him,  that  there  was  no  witness  of  the  trans- 
action ?  He  ought  not  to  have  entered  into  such  a  treaty  with. a 
young  man,  without  having  a  witness  present.  The  whole  transac- 
tion speaks  the  truth  of  the  Master  of  the  Rolls'  declaration,  that 
there  was  a  contidence  reposed  in  Mackreth;  and  it  will 
need  very  little  argument  to  prove  that  that  confidence  *was  [  *  103  ] 
abused.  Either  Mackerth  had  a  valuation  at  the  time  of 
the  treaty,  or  not.  If  he  had  not,  he  induced  Fox  to  sell  at  5500Z. 
less  than  his  own  valuation;  if  he  had,  he  concealed  that  circum- 
stance from  Fox,  and  now  conceals  it  from  the  Court.  Another 
thing  that  is  urged  is,  that  Fox  has  confirmed  the  transaction.  If 
he  has  confirmed  it,  I  admit  it  cannot  be  rescinded;  but  the  first 
preliminary  to  a  confirmation  is,  that  the  party  should  be  previously 
apprised  what  it  is  he  confirms.  When  the  present  comes  to  be 
compared  with  the  confirmations  in  the  cases  where  they  have  been 
held  to  bind,  it  is  very  unlike  them;  for  none  of  them,  except  the 
execution  of  the  duplicates  of  the  conveyances,  have  the  least  ten- 
dency to  confirm.  They  are  mere  consequential  acts.  In  Chester- 
field V.  Jatissen  and  Cole  v.  Gibson  there  were  clear  acts  of  con- 
firmation. Here  they  are  only  carrying  the  contracts  into  execu- 
tion ;  and  the  excution  of  the  duplicates  only  shows  how  much  Fox 
was  in  the  power  of  Macki-eth.  It  was  only  done  for  the  jnirpose 
of  getting  something  which  might  be  called  an  act  of  confirmation; 
and  Farrer  refused  to  consent  to  their  execution  but  with  the  pro- 
viso that  it  should  not  be  considered  as  a  confirmation.  If  Mack- 
reth had  first  informed  Fox  of  the  real  value  of  the  estate,  and 
then  he  had  affirmed  the  contract,  it  would  have  been  final.  On 
the  contrary,  he  w^as  in  distress  in  1779,  and  absolutely  in  the  hands 
and  power  of  Mackreth;  and  so  he  was  at  every  period  Avhen  the 
confirmations  were  obtained.  No  one  act  Avas  done  with  a  knowl- 
edge of  the  value  of  the  estate.  By  his  own  admission,  Mackreth 
cheated  Fox  out  of  GOOZ.  or  700Z.  in  his  first  account.  In  May, 
1781,  he  sent  him  another  account  rectifying  the  mistake.      In   the 

227 


*164  FOX  V.  MACKRETH. 

ineanwliile  he  had  lent  his  money  on  bond,  and  bought  an  annuity 
of  him.  If  not  from  friendship,  from  what  principle  did  Mackreth 
act,  but  from  the  desire  to  get  this  estate,  or  as  much  as  he  could 
out  of  Fox?  It  is  urged,  that  this  transaction  cannot  be  set  aside, 
because,  if  it  is,  no  man  can  purchase  at  a  fair  price,  and  sell  at  a 

greater  without  the  fear  of  having  the  transaction  rescinded. 
[  *  164  ]  But  was  there  everva  fair  *case  where  such  an  advantage 

was  taken  as  in  the  present?  No  man,  acting  fairly,  would 
deal  with  a  young  man  without  witnesses;  no  man,  acting  fairly, 
would  conceal  his  having  a  valuation.  It  is  to  be  hoped  such  a 
transaction  will  never  exist  again;  but  no  fear  can  arise  to  fair 
transactions  from  such  a  transaction  as  this  being  overturned. 

Lord  Chancellor  Thurlow. — The  great  and  only  doubt  which  I 
have  had  from  the  beginning  to  the  end  of  this  case  is,  whether  the 
ground  upon  which  I  must  go,  if  I  affirm  this  decree,  will  not  by 
necessary  implication  extend  to  many  other  cases,  in  which  I  shall 
run  the  hazard  of  undoing  all  the  common  transactions  of  mankind, 
and  of  rendering  all  their  dealings  too  insecure.  I  do  not  agree 
with  those  who  say,  that,  wherever  such  an  advantage  has  been 
taken  in  the  course  of  a  contract  by  one  party  of  another,  as  a  man 
of  delicacy  would  refuse  to  take,  such  a  contract  shall  be  set  aside. 
Let  us  pxit  this  case: — Suppose  A.,  knowing  of  a  mine  on  the  estate 
of  B.,  and  knowing  at  the  same  time  that  B.  was  ignorant  of  it, 
should  treat  and  contract  with  B.  for  the  purchase  of  that  estate  at 
only  half  its  real  value,  can  a  Court  of  equity  set  aside  this  bargain? 
No;  but  why  is  it  impossible?  Not  because  the  one  party  is  not 
aware  of  the  unreasonable  advantage  taken  by  the  other  of  this 
knowledge,  but  because  there  is  no  contract  existing  between  them 
by  ivhich  the  one  party  is  bound  to  disclose  to  the  other  the  circum- 
stances tvhich  have  come  within  his  knoicledge;  for,  if  it  were  other- 
wise, such  a  principle  must  extend  to  every  case  in  which  the  buyer 
of  an  estate  happened  to  have  a  clearer  discernment  of  its  real 
value  than  the  seller.  It  is,  therefore,  not  only  necessary  that 
great  advantage  should  be  taken  in  such  a  contract,  and  that  such 
an  advantage  should  arise  from  a  superiority  of  skill  or  information, 
but  it  is  also  necessary  to  show  some  obligation  binding  the  party  to 
make  such  a  disclosure.  Therefore  the  question  is,  not  whether 
this  transaction  be  such  as  a  man  of  honour  would  disclaim  and 
disdain,  but  it  must  fall  within  some  settled  definition  of  wrong 
228 


FOX  V.  MACKRETH.  *  1G6 

recognized   *  by   this  Court;  for,  otherwise,  the  general  [  *  1G5  ] 
transactions  of  mankind  would  be  too  much  in  hazard  and 
uncertainty.     In  this  view,  and  in  this  view  only,  I  have  entertained 
considerable  doubts  on  this  case. 

The  Master  of  the  Rolls  has  referred  a  great  variety  of  accounts, 
subsisting  between  the  parties,  to  the  Master;  and  it  is  not  quite  a 
f  dir  argument  to  consider  this  part  of  the  case  as  altogether  decided. 
If  these  points  are  material,  the  only  consequence  is,  that,  as  to  them, 
the  judgment  must  bo  suspended. 

In  the  present  appeal  I  shall  consider  the  case  entirely  on  the  trans- 
action of  the  16th  of  January.  I  shall  also  consider  certain  terms 
necessary  to  be  found,  in  analogy  to  the  finding  of  a  jury.  First,  it 
is  necessary  to  find  the  real  value  to  be  what  Page  gave  for  the  es- 
tate, or  much  more  at  least  than  the  price  given  by  Mackreth;  for, 
unless  there  be  great  inadequacy  of  value,  the  case  comes  to  nothing. 
The  fraud  or  imposition  of  the  one  party  affords  no  ground  of  relief, 
unless  dama(/e  be  sustained  by  the  other  (q) ;  and,  on  the  other  hand, 
it  does  not  follow,  though  the  real  value  should  be  found  such  as 
now  represented  on  the  part  of  the  plaintiff,  that  it  will  put  an  end 
to  the  contract,  unless  such  advantage  has  been  obtained  by  some 
of  those  frauds  which  the  policy  of  this  Court  has  adopted  as  grounds 
on  which  to  set  contracts  aside. 

The  Master  of  the  Rolls  has  said  that  Mackreth  shall  be  a  trustee, 
and  so  he  must  be  taken  consequentially;  for,  if  it  be  true  that  Mack- 
reth has  cheated  Fox  in  this  bargain,  he  did  get  the  estate  at  law, 
but  he  did  not  get  the  estate  in  equity,  and  then  he  is  reduced  to  a 
trustee.  It  is  only  in  consequence  of  his  getting  the  estate  by  fraud, 
that  he  becomes  a  trustee.  Suppose  an  estate  to  be  of  the  value  of 
50,000Z.,  and  Mackreth  buys  it  for  40,000Z.,  committing  great  fraud 
in  such  purchase,  but,  from  the  calaraities  of  war  and  other  public 
distresses,  landed  property  as  well  as  stocks  sink  in  value  more 
than  one-fifth,  and  Mackreth  then  sells  the  estate  for  35,000/.  or 
30,000Z.  only,  would  it  not  be  true  that  Mackreth  would 
*  be  bound  to  pay  the  10,000Z.  as  a  satisfaction  for  the  fraud  [  *  16G  ] 
committed  by  him,  although  he  had  not  made  the  money 
he  actually  gave  for  it  ?  The  money  would  be  due,  not  in  conse- 
quence of  what  Mackreth  afterwards  sold  it  for,  but  what  Fox  lost 
by  it  at  the  time.     The  only  consequence,  in  a  Court  of  equity,  is, 

. . c : 

{q)  This  opinion  Lord  Thurloic  changed,  for  lie  refused  an  inquiry  as  to  the 
value  of  the  estate. 

229 


*  167  FOX  V.  MACKRETH. 

that  what  one  party  lost  by  the  undue  advantage  taken  by  the  other 
must  be  answered  to  him. 

The  Master  of  the  Rolls  went  on  the  fact  of  the  value  of  the  es- 
tate being  that  for  which  it  was  sold  to  Page,  and  thought,  that,  this 
being  the  value,  Mackreth  had  cheated  Fox.  Taking  this  for  the 
present  to  be  so,  let  us  go  over  shortly  the  facts  of  the  case. 

Fox  beo-an  to  be  distressed  about  three  or  four  years  before  he 
came  of  age.  He  engaged  other  young  men  with  whom  he  was  con- 
nected, to  become  securities  for  him  for  sums  of  money  he  had  bor- 
rowed. He  had  involved  himself  in  annuities.  AYhen  he  came  of 
ao-e  he  found  himself  under  this  imperfect  obligation  in  point  of  law, 
but  very  strong  obligation  in  point  of  honour,  to  relieve  those  who 
had  pledged  their  names  for  him.  A  plan  was  formed  to  sell  a  part 
of  his  estate.  His  situation  as  to  fortune  when  he  came  of  age  was 
this:  his  estate  in  Surrey  was  about  1200Z.  per  annum.  Of  this  he 
was  tenant  in  tail.  He  had  an  estate  in  Yorkshire  of  llOOZ.  per  an- 
num, of  which  he  was  tenant  for  life.  He  had  also  an  estate  in  Ire- 
land, of  which  he  was  tenant  for  life  in  possession,  of  about  SOOOi. 
or  6000Z.  per  annum.  Such  was  his  situation  when  he  came  of  age. 
He  had  resorted  to  a  man  of  character  in  his  profession,  Mr.  Farrer, 
for  the  purpose  of  settling  this  business.  The  23rd  of  August,  1777, 
came,  and  no  step  was  taken  towards  taking  any  account  of  his  debts 
and  annuities,  or  negotiating  with  any  of  his  creditors;  yet  it  is  most 
evident  that  the  best  time  for  settling  these  matters  with  his  cred- 
itors was  before  he  came  of  age. 

However,  he  came  of  age  of  the  23rd  of  August:  and  on  the  23rd 
of  September,  it  seems,  the  first  conversation  was  had  upon  this  sub- 
ject. He  had  then  been  introduced  to  Mackreth.  At  that 
[  *  167  J  time,  certainly,  there  was  nothing  *  confidential  in  their 
intercourse,  or  any  close  connexion  between  them;  but  Fox 
applied  to  Mackreth  for  about  5000Z.  Mackreth  naturally  asked 
what  security  he  had  to  offer.  Fox  thereupon  told  him  his  real  sit- 
uation, by  which  it  appeared  that  Fox  had  no  permanent  security  to 
ofi'er  till  Michaelmas  Term,  when  he  could  suffer  a  recovery  of  the 
Surrey  estate.  Mackreth  then  proposed  to  him,  as  the  ordinary  mode 
of  raising  money,  to  buy  an  annuity  of  him  at  six  years'  purchase, 
which  is,  in  truth,  about  half  the  real  value;  and,  therefore,  whoever 
proposes  to  deal  with  another  upon  this  sort  of  terms,  quits  at  once 
all  idea  of  delicacy  or  generosity  or  propriety  of  conduct.  It  is  such 
as  cannot  be  endured  out  of  a  Court  of  justice;  and,  if  a  court  does 
230 


FOX  V.  MACKRETU.  *  168 

affirm  Buch  transactions,  it  cannot  be  the  Loart  of  a  judge  which 
affirms  it,  but  it  must  be  done  from  a  fear  of  laying  down  such  rules 
as  may  tend  to  make  the  general  transactions  of  mankind  too  inse- 
cure. There  were  other  modes  which  might  have  occurred  to  a  man 
of  different  feelings.  A  contract  to  make  a  mortgage  when  the  Term 
came  would  have  been  an  effective  lien  on  the  estate;  and  then  it 
would  only  have  been  necessary  to  have  insured  Fox's  life  to  the  end 
of  Michaelmas  Term.  This  would  have  been  the  just  and  honourable 
way  of  relieving  him.  On  the  other  hand,  it  is  observable,  that, 
though  Mackreth  adopted  the  other  mode  of  raising  the  money,  it 
was  done  in  the  usual  course  of  his  business;  for,  by  profession,  he 
dealt  in  the  distresses  of  mankind.  What  he  did,  he  did  in  his  way 
and  business  of  an  annuity  monger.  I  make  neither  better  nor 
worse  of  his  conduct  than  that  of  a  common  and  professed  annuity- 
monger. 

In  November  the  recovery  was  suffered.  Still  nothing  was  done 
by  Fox's  friends  towards  relieving  him  from  the  annuities,  which 
were  eating  him  up.  On  the  '24th  of  December  Fox  sends  word 
that  he  was  in  great  distress,  in  confinement,  and  wanted  money 
immediately.  Mackreth  came  to  him  and  lent  him  money  on  com- 
mon terms  and  took  a  mortgage  for  it.  A  judge  cannot  impute 
anything  to  this  part  of  the  transaction,  either  one  way  or 
*  another.  There  was  no  generosity  on  one  side,  nor  any  [  *  168] 
plot  of  circumvention  on  the  other.  It  would  be  a  most 
extravagant  conjecture  to  suppose  that  by  this  Mackreth  had  in 
view  to  get  the  legal  estate  in  himself.  When  one  once  gets  beyond 
the  natural  result  of  facts,  there  is  no  end  to  conjecture  or  its  con- 
sequences.    This  was  the  situation  on  the  24th. 

Mackreth  was  made  acquainted  with  the  plan  of  the  trust  deed, 
and  it  is  certain  that  he  industriously  recommended  himself  and 
Dawes  as  trustees  for  this  purpose.  It  has  been  said,  that  Mackreth's 
forcing  himself  into  the  trust  was  improper,  and  done  for  some  bad 
motive;  and  that  taking  the  business  out  of  the  hands  of  Mr.  Farrer 
was  calculated  to  give  Fox  a  bad  impression  of  him.  I  do  not  ao-ree 
to  this.  In  whose  room  were  Mackreth  and  Dawes  to  be  substi- 
tuted? The  two  first  were  Lord  Grantley  and  Lord  Ligonier,  who 
were  put  in  only  because  they  were  lords,  I  believe;  for  it  was  not 
very  probable  that  they  should  be  active  or  attentive  in  executino- 
such  a  trust  as  this.  As  to  Mr.  Farrer  himself,  it  is  only  to  be  said 
that  he  had,  in  fact,  done  nothing  in  the  affairs,  nor  taken  any  step 

231 


*  1G9  FOX  V.  MACKRETH. 

towards  it.  I  therefore  really  believe  that  Mackreth  meant  what  he 
said  upon  that  occasion;  and,  when  he  proposed  himself  and  Dawes 
as  trustees,  he  meant  to  transact  the  business  to  the  best  advantage. 
In  doing  this  he  undertook  a  very  delicate  trust:  first,  he  was  to 
make  the  most  of  the  estate ;  then  to  deal  with  the  several  annuitants. 
This  put  him  into  very  awkard  circumstances,  himself  and  Dawes 
being  both  considerable  annuitants;  and,  therefore,  when  he  under- 
took to  deal  with  annuitants  at  large,  he  undertook  a  very  nice 
charge,  and  it  was  incumbent  on  him  to  see  with  very  great  atten- 
tion that  he  did  not  show  more  favour  to  the  annuitants  than  he 
ought  to  do. 

I  certainly  do  not  approve  of  Mackreth's  conduct,  when,  after 
having  recommended  himself  as  a  trustee  for  these  purposes,  he 
allowed  the  several  annuities  to  stand  as  far  as  they  had  then  gone, 
redeeming  them  only  from  that  time.  However,  in  fact, 
[  *  169]  he  bought  the  annuities  *  on  behalf  of  Fox,  though  with 
his  own  money ;  but  instead  of  considering  them  as  discharg- 
ed on  the  24th  of  December,  when  he  bought,  them  he  considered  them 
as  bought  for  his  own  use,  and  treated  them  as  existing  annuities.  Here, 
therefore,  he  has  gone  beyond  the  line  of  delicacy;  for  this  is  a 
transaction  that  a  Court  of  equity  will  never  permit  to  stand.  Here 
the  Court  will  say  he  took  an  undue  advantage  of  his  situation. 
Yet  it  seems  as  if  he  thought  this  a  fair  mode  of  dealing  in  this  sort 
of  market. 

In  another  instance  he  charged  Fox  more  than  he  actually  gave 
for  the  redemption  of  an  annuity;  and  this  part  of  the  transaction 
must  of  necessity  be  rescinded,  as  Mackreth  has  acted  unfairly  in 
it;  and  Fox  has  the  advantage  of  finding  that  Mackreth,  after  bav- 
ins recommended  himself  as  a  trustee,  and  undertaken  to  act  faith- 
fully for  his  cestui  que  trust,  has  yet  been  dealing  unfairly  in  this 
very  article. 

On  the  16th  of  January  it  is  allowed  that  Mackreth  was  a  trus- 
tee of  Fox,  and  whatever  consequences  arise  from  this  character 
must  belong  to  him.  Considering  him,  therefore,  as  a  trustee,  see 
what  he  has  done  !  First,  he  sent  down  a  surveyor  to  the  estate; 
but  he  has  so  managed  this  part  of  the  case  as  to  prevent  the  Court 
from  seeing  much  into  it.  The  Court  will  act  temperately  in  its 
conjectures  on  this,  but  at  the  same  time  will  impute  all  that  it 
fairly  can  in  point  of  suspicion.  On  one  side  it  is  said  that  Hamp- 
ton was  sent  down  to  survey  the  estate  with  a  view  of  enabling 
232 


FOX  V.  MACKRETII.  *  170 

Mackreth  to  make  the  greatest  advantage  of  it  for  bis  private  bene- 
fit; but  I  do  not  think  ho.  I  think  it  ought  to  be  taken  that  he  had 
the  estate  surveyed  as  a  trustee,  in  order  that,  in  that  character,  he 
might  know  the  real  value  of  it,  and  thereby  be  better  qualified  to 
sell  it  to  advantage.  This,  then,  I  consider  as  a  part  execution  of 
his  trust.  But  then  Hampton's  knowledge  ought  to  be  Fox's 
knowledge;  and  upon  this  arises  a  question  which  I  think  material 
— whether  a  trustee,  gaining  knowledge  of  the  subject  in 
the  execution  of  his  trust  and  at  the  expense  of  the  *  cestui  [  *  170  ] 
que  trust  (for  I  suppose  the  expenses  incurred  by  the 
trustees  must  fall  xiltimately  on  Fox),  and  that  knowledge  conse- 
quently belonging  to  the  cestui  que  trust,  whether  a  trustee  may  not 
in  this  respect  have  the  hand  of  justice  laid  upon  him,  if  this  knowl- 
edge is  made  use  of  by  him  to  circumvent  his  cestui  que  trust,  so  as 
to  afford  a  distinct  ground  of  fraud  in  a  Court  of  equity?  I  am 
rather  at  a  loss  to  find  what  the  evidence  affords  to  this  point.  It 
appears,  however,  that  Hampton  stayed  on  the  estate  till  the  17th 
of  January. 

In  these  circumstances  Mackreth  began  to  deal  with  Fox,  remain- 
ing in  his  character  of  a  trustee.  Fox  had  a  valuation  of  the  es- 
tate made  by  Jackman,  which,  though  not  very  full  or  particular, 
yet  afforded  the  general  terms  for  a  treaty  and  agreement;  and  it 
went  generally  to  show  that  the  estate  was  capable  of  being  im- 
proved about  lOOZ.  per  annum.  On  this  valuation,  lying  in  medio, 
one  party  says  the  estate  is  worth  47,000Z.  Mackreth  reasons  on 
this  survey,  and  says,  first,  that  the  houses  are  valued  too  high; 
secondly,  that  thirty-two  years'  purchase  for  the  land  is  too  much; 
next,  that  forty  years'  purctiase  for  the  lord's  rent  is  out  of  all  sight. 
Thus  running  down  the  valuation  made  by  Jackman,  he  argued 
down  Fox  either  from  conviction  or  a  sense  of  his  distress,  not  in- 
deed so  low  as  36,000^.,  which  Mackreth  first  proposed,  but  to  a 
medium  price  of  39,500Z. 

The  first  question  to  be  asked  is,  zvhether  the  character  of  a  trustee 
shall  vary  the  consequence  of  this  transaction  from  tvhat  it  icould 
be  in  the  case  of  a  stranger  f  for  it  has  not  been  argued,  I  think, 
that,  in  the  case  of  a  stranger,  this  bargain  could  be  rescinded. 
Now,  to  what  conclusion  does  thecharacter  of  trustee  go  in  this  case? 
If  a  trustee,  though  stricthj  honest,  buys  an  estate  himself  and.  then 
sells  it  for  more,  yet,  according  to  the  rules  of  a  Court  of  equity,  from 
general  policy  and  not  from  any  peculiar  imputation  of  fraud,  a 

Zoo 


*  172  FOX  V.  MACKRETU. 

trustee  shall  not   be  permitted   to  sell  to  himself,  but  shall  remain  a 
trustee  to  all  intents  a7id  purposes.     It  is  not,  therefore,  in  that  view 
that  Mackreth,   being  called    a  trustee,  can  operate.     It 
[  *  171  ]  *  does  not  rest  on  the  name  of  a  trustee,  or  on   the  legal 
or  equitable  relation  of  trustee,  but  on  the  familiar  inter- 
course between  him  and  Fox.     Now,  can  I,  putting  myself  in  the 
place  of  a  juryman,  pronounce  that  Fox  agreed  to  the  price,  trust- 
ing that  Macfa^eth  knew  the  price  and  represented  it  fairly  to  himf 
If  k.  says  to  B.,  I  know  the  value  of  the  subject,  and    if  you  will 
trust  me,  I  will  fairly  tell  you  what  it  is  worth,  and  A.  at  the  same 
time  knows  the  value  to  be  double  what  he  represents  it  to  be,  this 
is  such  an  abuse  of  confidence  as  shall  be  relieved  against,  not  be- 
cause A.  is  a  trustee,  but  because  he  stipulated  with  B.  to  tell  him 
fairly  the  value,  and   he  broke  that  stipulation;  and  then,  to  be 
sure,  it  makes  full  as  strong  a  case  as  that  of  a  trustee.     But  was  this 
the  express  or  tacit  understanding  of  the  parties  here?     I  have  no 
materials  to  affirm  this  fact  upon;    at  least  I   am   considerably  in 
doubt  how  to  find  any  evidence  of  this,  where  one  party  asserts  one 
sum  to  be  the  value  of  the  estate,  and  the  other  another,  and  both 
try  to  make  the  best  of  the  bargain.     At  the  same  time  there  are 
such  circumstances  respecting  the  manner  in  which  Mackreth  under- 
took the  trust,  as  make  me  hesitate.     All  this  makes  the  question 
of  the  real  value  of  the  estate  extremely  material   (j-)-     I   do   not 
think  it  could  have  been  sold  at   the  time  according  to  the  rate  of 
Jackman's  valuation;  and  Mackreth's  observations  upon  this  seem 
to  me  to  be  well  founded.     No  evidence  has  been  adduced  to  show 
his  valuation  to  be  correct. 

Now,  see  what  follows  on  the  16th  of  January.  Garforth  was 
called  up  and  desired  to  put  their  agreement  into  writing.  I  do 
not  see  why  it  is  necessary  that  this  memorandum  should  be  signed 
by  both  parties.  I  at  first  thought  it  showed  an  eagerness  to  get 
the  bargain  made;  but  it  seems  it  was  agreed  that  more  regular  ar- 
ticles should  be  executed  afterwards.  The  execution  of  these 
articles  carried  the  transaction  one  step  farther  in  pcint  of  form. 
Still,  however,  the  conveyance  was   not  executed.       It  is   asked, 

whether  any  man  of  honour  would  let  Fox  execute  the 
[  *  172  ]  deeds,  after  he  had  actually  sold  the  estate  for  *   a  much 

larger  price?     Many  men,  perhaps,  would  do  it;  but  I 

(r)  Not  for  the  purpose  of  the  decision  in  a  case  between  a  trustee  and  his 
cestui  que  trust.     See  8  Ves.  353;  9  Ves.  247. 

234 


FOX  V.  MACKRETII.  *  173 

should  never  allow  it  to  be  the  transaction  of  an  honest  man.  Mack- 
reth  had  forced  himself  into  the  confidonce  of  Fox  and  was  called 
upon,  by  every  tie  of  honour  and  honesty,  to  consider  himself  as  a 
trustee;  but  my  doubt  is,  whether  this  is  not  too  general  a  line  to 
lay  down  in  a  Court  of  justice. 

As  to  the  manner  of  Mackreth's  paying  Fox  the  purchase-money, 
it  has  been  much  observed  upon;  but  I  do  not  see  much  in  it.  He 
had  not  the  money  by  him,  which  may  readily  be  supposed,  but  ha 
gave  an  accountable  note,  with  hi.  per  cent,  interest;  and,  to  be 
sure,  his  note  was  just  as  good  as  a  bond — very  little  danger  of  los- 
ing the  money  from  a  man  of  Mackreth's  fortune;  besides,  it  was  a 
sort  of  lien  on  the  estate.  The  manner  in  Avhich  the  accounts  are 
made  u{)  by  Mackreth  is  objected  to,  and  it  is  said  that  this  shows 
a  confidence  reposed  in  Mackreth  by  Fox.  So  it  does;  but  the  ques- 
tion is  whether  this  confidence  is  ad  idem — whether  it  shows  a  con- 
fidence on  the  part  of  Fox,  that  Mackreth  would  tell  him  the  ti^e 
value  of  the  estate  f 

It  is  then  said,  that  he  was  called  upon  to  do  several  subsequent 
acts;  but  these  are  to  bo  so  naturally  accounted  for  by  other  circum- 
stances, that  I  do  not  see  how  fraud  can  be  inferred  from  these. 
They  are  then  spoken  of  as  instances  in  which  Fox  has  confirmed 
the  original  purchase.  As  to  confirmation,  it  has  been  considered 
by  the  Court  in  very  different  ways.  In  Loixl  Chesterfield  v.  Janssen, 
the  Court  did  not  go  on  confirmation  as  it  is  usually  understood: 
but  on  this,  that  Mr.  Spencer,  with  his  eyes  open,  and  after  the 
death  of  the  Duchess,  and  when  his  situation  was  totally  changed, 
thought  proper  to  confirm  the  former  bargain.  So,  the  judges  as- 
sistant relied  on  this  principally,  and  did  not  give  much  opinion  on 
the  former  part  of  the  case.  I  wish  they  had  gone  further;  for,  as 
to  the  confirmation,  he  stood  at  that  time  under  the  former  bonds. 
Another  way  in  which  confirmation  operates  is,  by  showing  that 
the  party  then  thinks  himself  to  have  been  fairly  dealt 
with.  *  This  occurs  in  the  present  case  on  the  28th  of  r*lT3] 
January.  Again,  on  the  25th  of  April,  Fox  did  not  see 
he  had  had  any  advantage  taken  of  him.  The  use  that  I  think 
is  to  be  made  of  such  confirmations  is,  as  a  proof  that  the  party 
has  seen  no  ocpasion  to  complain.  In  this  view  the  present  case  is 
still  stronger,  for  no  complaint  was  made  of  this  transaction  till 
1781 ;  and,  therefore,  it  is  fair  to  infer  that  so  notorious  a  dispro- 
portion of  price  as  is  now  insisted  upon  was  not  within  the  suspic- 

235 


*  174  FOX  V.  MACKRETH. 

ion  of  those  who  dealt  for  Mr.  Fox;  and  it  certainly  would  have 
been  better  if  this  suit  had  been  brought  earlier,  for  when  are  the 
afPairs  of  mankind  to  be  at  rest?  Nay,  more  than  this,  it  is  evi- 
dent, and  indeed  not  denied  by  the  plaintiff's  counsel,  that  the 
transaction  never  would  have  been  impeached  if  Page  had  not 
given  so  large  a  price  for  the  estate.  This  very  much  shakes  my 
idea  of  the  real  value  (s)  of  it.  If  this  estate,  situated  near  Lon- 
don, had  really  been  sold  at  a  great  under- value,  the  friends  of  Mr. 
Fox  must  have  known  it  by  other  means.  Supposing  the  transac- 
tion with  Page  to  be  purely  accidental  and  not  springing  out  of  the 
actual  value,  it  never  can  affect  this  question.  At  the  same  time 
it  is  observable  that  Mackreth  has  produced  no  evidence  of  the 
value  of  the  estate,  to  show  that  it  is  not  worth  more  than  what  he 
gave  Fox. 

I  have  been  desirous  of  stating  my  thoughts  on  this  case,  that 
the  gentlemen  concerned  may  be  apprised  of  them,  as  it  will  very 
possibly  be  necessary  to  have  this  matter  discussed  further,  even 
before  me.  I  have  conversed  with  the  Master  of  the  Kolls  and  the 
judges,  with  a  wish  to  find  some  rule  of  evidence  on  which  I  can 
go  in  this  case,  without  running  the  hazard  of  shaking  too  much 
the  contracts  of  mankind  it  is  of  very  little  consequence  to  the  pub- 
lic to  lay  down  definite  rules  of  law,  if  you  have  indefinite  rules  of 
evidence.  I  shall  therefore  at  present  only  direct  an  inquiry  into 
the  real  value  of  this  estate;  and  if  upon  that  inquiry  the  value 
should  turn  out  to  bear  a  considerable  disproportion  to  what  Mack- 
reth gave  for  it,  I  shall  probably  require  some  assistance 
[  *  174  ]  in  laying  down  such  rules  of  decision  *  as  will  set  men  at 
ease  as  to  the  disposition  of  their  property. 

His  Lordship,  however,  did  not  direct  any  such  inquiry,  but 
after  a'  lapse  of  considerable  time  affirmed  the  decree,  saying  only 
that  he  had  considered  the  case  very  much,  and  that  he  could  not 
see  that  his  Honor's  decree  was  wrong. 

The  defendant  afterwards  petitioned  his  Lordship  for  a  rehearing 
of  the  appeal,  but  that  petition  was  dismissed.  See  2  Cox,  158. 
He  then  appealed  to  the  House  of  Lords,  assigning  the  reasons  set 
forth  in  2  Cox,  330;  but,  on  the  14th  of  March,  1791,  the  appeal  was 
dismissed  with  costs.     Id.  339;  4  Bro.  P.  C.  258,  Toml.  ed. 

(s)  The  value,  as  before  observed,  was  immaterial. 

236 


FOX  V.  MACKRETIT.  *  175 

The  well-known  and  thorouglily  discussod  case  of  Fox  v.  Mack- 
ret  h  is  usually  referred  to  as  having  established  the  rule  ever  since 
recognised  and  acted  on  by  Courts  of  equity,  viz.,  that  a  purchase 
by  a  trustee  for  sale  from  his  cestui  que  trust,  although  he  may 
have  given  an  adequate  price,  and  gained  no  advantage,  shall  be 
set  aside  at  the  option  of  the  cestui  que  trust,  unless  the  connec- 
tion between  them  most  satisfactorily  appears  to  have  been  dis- 
solved, and  unless  all  knowledge  of  the  value  of  the  property  ac- 
quired by  the  trustee  has  been  communicated  to  his  cestui  que 
tiust.  [In  many  cases  it  has  been  held  that  a  trustee  cannot  pur- 
chase the  trust  property  even  at  judicial  sale  brought  about  by  a 
third  party  and  which  the  trustee  has  taken  no  part  in  procuring: 
Ogden  r.  Larrabel,  57  111.  389;  Chandlers.  Moneton,  33  Vt.  245; 
Jamison  v.  Glascock,  29  Mo.  191;  Martin  v.  Wynkoop,  12  Ind.  266. 
There  are  several  decisions  on  this"  point  which  are  the  other  way. 
Mercer  v.  Sarber,  0  W.  &  S.  18;  Huger  v.  Huger,  9  Rich.  Eq.  217; 
Chorpenuing's  Appeal,  8  Casey,  315;  Huger  v.  Id.,  9  Rich.  Eq.  217; 
Mercer  r.  Newson,  23  Ga.  151.]  "It  is  founded,"  observes  Lord 
Eldon,  "upon  this:  that  though  you  may  see  in  a  particular  case 
that  the  trustee  has  not  made  advantage,  it  is  utterly  impossible  to 
examine,  upon  satisfactory  evidence,  in  the  power  of  the  Court  (by 
which  I  mean  in  the  power  of  the  parties),  in  ninety-nine  cases  out 
of  a  hundred,  whether  he  has  made  an  advantage  or  not.  Suppose 
a  trustee  buys  any  estate,  and,  by  the  knowledge  acquired  in  that 
character,  discovers  a  valuable  coal-mine  under  it,  and,  locking  that 
up  in  his  own  breast,  enters  into  a  contract  with  the  cestui  que 
trust;  if  he  chooses  to  deny  it,  how  can  the  Court  try  that  against 
that  deuial?  The  probability  is,  that  a  trustee  who  has  once  con- 
ceived such  a  purpose  will  never  disclose  it,  and  the  cestui  que 
trust  will  be  effectually  defrauded:"  Ex  parte  Lacey,  6  Ves.  627. 
[It  is  possible  for  the  trustee  to  enter  into  a  contract  with  the  ces- 
tui que  trust,  but  such  a  contract  will  be  scrutinized  with  great 
severity  by  the  court:  Jones  v.  Smith,  33  Miss.  215;  Smith  v. 
Isaac,  12  Mo.  106;  Dunlap  u.  Mitchell,  10  Ohio,  17;  Ames  z;.  Down- 
ing, 1  Bradf.  321;  Stewart  v.  Kistam,  2  Barb.  493;  Harrington  v. 
Brown,  5  Pick.  519.] 

Lord  Thurloiv,  indeed,  in  Fox  v.  Mackreth,  when  he  dissolved  the 
inJTinction  granted  by  the  Master  of  the  Rolls  (see  ante,  p.  152), 
and  in  his  judgment,  intimated  an  opinion  that  it  was  extremely 
material  to  ascertain  the  value  of  the  estate  purchased  by  Mackreth 
from  Fox,  his  cestui  que  trust,  and  proposed  to  direct 
*  an  inquiry  for  that  purpose.  Ultimately,  however,  he  [  *  175  ] 
did  not  direct  any  such  inquiry,  and  he  afterwards  admit- 
ted that  he  was  wrong  in  dissolving  the  injunction.  Fox  v.  Mack- 
reth, therefore,  was  decided,  not  upon  the  ground  that  Mackreth  had 
purchased  the  estate  at  an  undervalue,  but  that  he  had  purchased 
it  from  his  cestui  que  trust  while  the  relation  of  trustee  and  cestui 
que  trust  continued  to  subsist  between  them,  and  without  having 

237 


*  176  FOX  V.  MACKRETII. 

commuaieated  to  Fox  the  knowledge  of  the  value  of  the  estate 
which  he  had  acquired  as  trustee;  for  if  the  relation  of  trustee  and 
cestui  que  trust  had  been  clearly  dissolved,  and  Mackreth  had  made 
Fox  fully  acquainted  with  the  knowledge  which  he  had  acquired  of 
the  value  of  the  estate,  the  purchase  would  not  have  been  set  aside. 
"  In  the  case  of  F'ox  v.  Mackreth,''''  says  Lord  Eldon,  "  so  much  re- 
ferred to,  and  now  become  a  leading  authority,  in  which  I  have  now 
Lord  Thurloi&s  own  authority  for  saying  he  went  upon  a  clear  mis- 
take in  dissolving  the  injunction;  it  was  never  contended  that  i£ 
Fox,  in  a  transaction  clear  of  suspicion  (but  which  must  be  looked 
at  with  the  most  attentive  jealousy),  had  discharged  Mackreth  from 
the  office  of  trustee,  he  would  not  have  been  able  to  hold  the  pur- 
chase. Why  ?  Because,  being  no  longer  a  trustee,  he  was  not  un- 
der an  obligation  not  to  purchase.  Bat  we  contended,  that  it  was 
not  in  the  power  of  Fox  to  dismiss  him;  that  the  trust  was  accept- 
ed-under  an  expi'ess  undertaking  to  the  friends  of  Fox,  that  the 
trustee  should  not  be  dismissed  without  their  privity;  that  Fox 
himself  had  too  much  imbecility  of  mind  as  to  these  transactions: 
and  we  contended,  that  between  the  date  of  Mackreth's  taking  upon 
himself  the  character  of  trustee,  and  purchasing,  he  had  acquired  a 
knowledge  of  the  value  of  the  estate,  by  sending  down  a  surveyor 
at  the  expense  of  the  cestui  que  trust,  which  was  not  communicated 
to  the  cestui  que  trust  even  at  the  moment  of  the  supposed  disso- 
lution of  the  relation  between  them;  and,  under  these  circumstan- 
ces, we  contended  that  Mackreth  remained  a  trustee.  This  was  the 
principle  upon  which  the  cause  was  decided.  Either  that  cause 
ought  to  have  been  decided  in  favour  of  Mackreth,  or  this  Court  orig- 
inally, and  the  House  of  Lords  finally,  were  right  in  refusing  an 
issue  to  try  whether  the  estate  was  of  the  value  Mackreth  gave,  or 
of  a  greater  value  at  that  time.  Upon  this  principle,  that  was  an 
immaterial  fact:  for,  if  the  original  transaction  was  right,  it  was  of 
no  consequence  at  what  price  he  sold  it  afterwards;  if  the  original 
transaction  was  wrong.  Mackreth  not  having  discharged  himself 
from  the  character  of  trustee,  if  an  advantage  was  gained  by  the 
most  fortuitous  circumstances,  still  it  was  gained  for  the 
[  *  176  ]  benefit  of  the  cestui  que  *  trust,  not  of  the  trustee:"  Ex 
parte  Lacey,  6  Ves.  C27.  See  also  Ex  parte  Bennett,  10 
Ves.  394. 

It  has,  indeed,  been  asserted  that  in  Whichcote  v.  Laurence,  3  Yes. 
'750,  Lord  Rosslyn  considered,  that,  in  order  to  set  aside  a  purchase 
by  a  trustee,  it  is  necessary  to  prove  that  an  advantage  has  been 
gained  by  him.  [A  trustee  or  any  other  person  standing  in  a  fidu- 
ciary relation  cannot  buy  up  a  claim  or  encumbrance  to  which  the 
trust  estate  is  liable  at  less  than  is  actually  due  thereon  and  then 
collect  the  full  amount  from  the  trust  estate:  Parshall's  Appeal, 
15  P.  F.  Smith,  235;  Schoonmaker  v.  Van  Wyck,  31  Barb.  457; 
Green  t;.  Winter,  1  John.  Ch.  27.]  His  Lordship,  however,  merely 
said,  that  he  did  not  recollect  any  case  in  which  the  mere  abstract 
238 


FOX  V.  MACKKETII.  *  i  H 

rule  camo  distinctly  to  bo  triod,  abstracted  from  tlio  considoration 
of  advantage  mado  by  the  j)urchaser,  and  that  it  would  bo  ditlicult 
for  Kucli  a  case  to  occur:  for  iinless  an  advantage  was  made,  tbo 
act  of  purchasing  wenild  never  bo  questioned:  and  Lord  EldoniW^- 
avow(Hl  such  an  interpretation  of  Lord  Rosslipvs  doctrine:  Ex  parte 
Lacc.y,  G  Ves.  627.  See  also  Ex  x>arte  Bennett,  iO  Yes.  385;  lian- 
(lall  \.  Errington,  10  Ves.  423;  Kilbee  v.  Sneyd,  2  Moll.  18G;  Ex 
parte  Badcock,  1  Mont.  &  Mac.  289;  the  important  case  of  Hamilton 
V.  Wriijlit,  y  C.  &  V.  Ill,  128, 124,  125. 

And  it  is  now  clearly  clearly  established  that  where  a  trustee  for 
sale  has  purchased  for  himself,  it  is  quite  unnecessary  for  the  ces- 
tui que  trust  to  show  unfairness  in  the  transaction  or  inadequacy  of 
price,  for  without  doing  so  he  is  at  liberty  tu  set  aside  the  sale. 
Ex  parte  Laceij,  6  Ves.  625;  Ex  j^ctrte  Bennett,  10  Ves.  3U8;  Gil)- 
son  V.  Jeyes,  6  Ves.  277.  [A  very  slight  advantage  to  the  trustee  or 
showing  of  his  bad  faith  is  sufficient  for  setting  the  sale  aside: 
Herbert  i\  Hanrick,  16  Ala.  581;  Buell  v.  Buckingham,  1613.284; 
Hannah  r.  Carrington,  18  Ark.  85.]  And  this  is  the  case,  wha^^ever 
may  be  the  nature  of  the  property,  real  or  personal  [Killick  v.  Elex- 
nei/,  4  Bro.  C.  C.  161;  Hall  v.  Hallet,  1  Cox,  134;  Pike  v.  Vigors,  2 
Dru.  &  Walsh,  262;  Price  v.  Byrne,  cited  5  Ves.  681);  in  posses- 
sion or  reversion:  Re  Bloye''s  Trust,  1  Mac.  &  G.  488, 492, 495;  Spring 
v.  Pride,  4  De  G.  J.  &  Sm.  395.  Nor  can  a  third  person  purchase 
for  him,  even  at  an  auction:  Campbell  v.  Walker,  5  Ves.  678;  S.  C, 
Sanderson  v.  Walker,  13  Ves.  601;  Randall  v.  Errington,  10  Ves. 
423;  Watson  v.  Toone,  6  Madd.  153;  Baker  v.  Carter,  1  Y.  &  C. 
Exch.  Ca.  250,  Lord  Hardwicke  v.  Vernon,  4  Ves.  411;  Ingle  v. 
Richards,  28  Beav.  361.  And  a  purchase  by  him  from  co-trustees 
is  equally  objectionable:  Hall  v.  Noyes,  cited  3  Ves.  748;  S.  C,  3 
Bro.  C.  C.  483;   Whichcote  v.  LaiLi'ence,  3  Ves.  940. 

Nor  will  a  purchase  by  the  trustees  at  a  public  auction  be  sus- 
tained; for  if  persons  who  are  trustees  to  sell  an  estate  are  there 
professedly  as  bidders  to  buy,  that  is  a  discouragement  to  others  to 
bid.  The  persons  present,  seeing  the  sellers  there  to  bid  for  the 
estate  to  or  above  its  value,  do  not  like  to  enter  into  that  competi- 
tion: Ex  parte  Lacey,  6  Ves.  629;  Ex  parte  James,  8  Ves.  348; 
Whichcote  v.  Laicrence,  3  Ves.  740;  Attorney -General  \.  Lord  Dud- 
ley. Coop.  146. 

Nor  can  the  trustee  purchase  under  a  decree  for  sale.   See 
Price  V.  Byrne,  cited  5  Ves.  681;  *  Caryv.  Cary,  2  S.  &  L.    [  *  177  J 
173:  but  see  Wren  v.  Kirton,  8  Ves.  502. 

Nor  can  the  trustee  pui'chase  from  the  assignees  of  his  cestui 
que  trust  in  bankruptcy  under  an  agreement  to  divide  the  profits, 
more  especially  if  the  purchase  money  consists  of  part  of  the  trust 
funds;  Vanghton  v.  Noble,  30  Beav.  34.  Nor  can  the  trustee  pur- 
chase as  agent  for  another  person;  Ex  parte  Bennett,  10  Ves.  381, 
400;  Gregory  v.  Gregory,  Coop.  204. 

Upon  the  same  principle,  a  receiver  (Eyre  v.   McDonnell,  15  Ir. 

230 


*  178  POX  V.  MACKRETH. 

Ch.  Rep.  534;  Boddington  v.  Lang  ford,  lb.  358)  or  an  agent  em- 
ployed by  a  trustee  {Whitconib  v.  Mincliin,  5  Madd.  91)  in  manag- 
ing a  sale  cannot  purchase.  See  also  In  re  Bloye's  Trust,  1  Mac.  & 
G.  488,  495. 

So  it  has  been  held  that  a  sub-agent  employed  to  sell  a  ship  at  a 
minimum  price,  purchasing  for  himself  at  that  price  and  reselling 
Avithout  the  knowledge  of  his  principal  for  a  larger  sum,  must  ac- 
count for  the  profit  made  thereby  {DeBussche  v.  Alt,  8  Ch.  D.  287): 
and  a  custom  in  certain  ports  for  an  agent  for  sale  with  a  minimum 
limit  himself  to  take  at  that  limit,  and  at  his  own  option  the  thing 
he  is  employed  to  sell  is  invalid.     lb. 

AYhere,  however,  a  trustee  has  fairly  sold  an  estate,  a  subsequent 
bona  fide  purchase  of  the  estate  from  the  purchaser  is  unobjection- 
able; Baker  v.  Peck,  9  W.  R.  (L.  C.  &  L.  J.),  472,  reversing  the 
decision  of  Sir  J.  Stuart,  V.-C,  lb.,  186;  and  see  Dover  v.  Buck,  5 
GifP.  57. 

A  trustee  cannot  take  a  lease  from  himself  :  Attorney -General  v. 
Earl  of  Clarendon,  17  Ves.  500;  Ex  parte  Hughes,  6  Ves.  617. 
[A  trustee  cannot  renew  a  release  for  his  personal  benefit:  King  v. 
Cushman,  41  111.  31;  Frank's  Appeal,  9  P.  F.  Smith,  190;  Mathews 
V.  Dragaud,  3  Dess.  25.]  And  with  so  great  jealousy  does  the  Court 
look  upon  a  trustee  becoming  a  lessee  of  the  trust  property,  that 
even  in  a  case  where  a  testator  had  given  a  trustee  power  to  become 
lessee,  he  was  removed,  principally  upon  the  ground  that  he  was 
placed  in  a  position  in  which  his  interest  necessarily  came  in  con- 
flict with  his  duty:  Passingham  v.  Sherborne,  9  Beav.  424. 

Governors  and  trustees  of  a  charity  cannot  grant  a  lease  to,  or  in 
trust  for,  one  of  themselves  {Attorney  Generalx.  Dixie,  13  Ves.  519, 
534;  Attorney -General  v.  Earl  of  Clarendon,  17  Ves.  491,  500), 
nor  insert  in  a  lease  any  stipulation  or  covenant  for  their  own  pri- 
vate advantage:  Attorney -General  v.  Mayor  of  Stamford,  2  Swans. 
592,  593;  Attorney- General  v.  The  Corj)oration  of  Plymotdh,  9 
Beav.  67.  The  same  rule  applies  to  a  member  of  a  corporation 
taking  a  lease  of  the  corporate  property:  Attorney  -  General  \.  Cor- 
poration of  Cashel,  3  Dru.  &  W.  294. 

But  although  a  trustee  cannot  purchase  from  himself,  he  can  pur- 
chase from  a  cestui  que  trust,  who  is  sui  juris,  after  he 
[  *  178  ]  has  been  ^discharged  from  the  obligation  which  attached 
upon  him  as  trustee.     [Pratt  v.  Thornton,  28  Me.  355; 
Wormley  v.  Wormley,  8  Wheaton,  421.] 

This  discharge  may  be  effected  in  two  ways:  First,  a  trustee  may 
qualify  himself  to  become  a  purchaser  of  the  trust  property  by  ac- 
tually ceasing  to  be  a  trustee,  and  thereby  discharging  himself 
(Downes  v.  Grazebrook,  3  Mer.  208),  but  he  will  not  be  allowed  to 
purchase  if  he  continue  to  act  as  trustee  up  to  the  point  of  the  sale, 
getting  during  that  period  all  the  information  that  may  be  useful  to 
him,  and  taking  advantage  thereof  while  purchasing  the  property. 
Ex  parte  Jarnes,  8  Ves.  352;  Sprivg  v.  Pride,  4  Do  G.  J.  &  Sm.  345. 
240 


FOX  V.  MACKRETII.  *  170 

Secondly,  a  trustee,  while  still  nominally  retaininj^j  hiHofficp,  may 
in  effect  enter  into  a  new  contract,  under  whicli  be.  may  deal  with 
his  cestui  que  trust;  but  the  relations  must  he  ho  far  dissolved,  that 
they  must  be  put  at  arm's-length,  so  that  they  agree  to  take  respec- 
tively the  characters  of  purchaser  and  vendor  (Ex parte  Lacey,  6  Ves. 
620,  027;  Gibson  v.  Jeyes,  lb.  211;  Morse  v.  Roi/al,  12  Ves.  373), 
the  cestui  que  trust  distinctly  understanding  that  he  is  selling  to 
the  trustee  {Randall  v.  Errington,  10  Ves.  427),  the  trustee  taking 
no  advantage  of  his  situation  to  acquire  a  beneficial  bargain  for 
himself  (ib.),  and  giving  to  the  cestui  quo  trust  all  material  in- 
formation which  ho  had  acquired  as  trustee:  Coles  v.  Trecothick, 
9  Ves.  247;  Gibson  v.  Jeyes,  0  Ves.  277. 

But  even  then  the  transaction  must,  according  to  the  rules  of  the 
Court,  be  watched  with  inlinito  and  most  guarded  jealousy;  and  for 
this  reason,  that  the  law  supposes  the  trustee  to  have  acquired  all 
the  knowledge  which  may  bo  very  useful  to  him,  but  the  cornmiini- 
cation  of  which  to  the  cestui  que  trust  the  Court  can  never  be  sure 
he  has  made,  when  entering  into  the  new  contract  by  which  he  is 
discharged;  Exjmrte  Lacey,  6  Ves.  626.  [If  on  careful  examina- 
tion it  plainly  appears  that  the  transaction  is  favorable  to  the  cestui 
que  trust,  and  that  there  is  no  fraud  or  concealment  of  facts  material 
to  the  transaction,  and  that  a  strict  examination  can  discern  no  fault 
in  the  trustee  in  the  management  of  the  trust  sale,  the  trustee  may 
hold  even  though  he  purchases  at  his  own  sale:  Johnson  v.  Ben- 
nett, 39  Barb.  237;  Rice  v.  Cleghorn  21  Ind.  80;  Pratt  v.  Thorn- 
ton 28  Me.  355;  Lyon  v.  Lyon,  8  Ired.  Eq.  201;  Dunn  v.  Dunn  42, 
N.  J.  Eq.  431;  Brown  v.  Cowell,  116  Mass.  465  ;  McCartney  v. 
Calhoun,  17  Ala.  301:  Jennison  v.  Hapgood,  7 Pick.  l.J  So,  in  the 
principal  case,  it  was  fully  admitted  that  Mackreth  might  have  dealt 
with  Fox  for  the  purchase  of  the  trust  estate,  had  he  done  so  with- 
out taking  an  undue  advantage  of  his  position  as  trustee,  and  the 
knowledge  he  had  acquired  in  that  character. 

From  the  strictness  with  which  the  Court  views  such  transactions, 
few  sales  between  trustees  and  cestui  que  trusts  have  been  sup- 
ported. In  the  leading  case,  however,  of  Coles  v.  Trecothick,  9  Ves. 
234,  a  purchase  by  one  of  two  trustees  under  a  trust  to  sell  for  pay- 
ment of  debts,  of  the  trust  property,  as  agent  of  his  father,  both  of 
whom  were  creditors  and  in  partnership,  was  sustained,  upon  the 
ground  that  the  trustees  did  not  appear  to  have  interfered  in  the 
business  up  to  the  sale,  otherwise  than  that  they  sanctioned  the  acts 
of  the  cestui  que  trust,  and  that  the  cestui  que  trust 
*  had  full  information,  and  the  sole  management  of  the  [  *  179] 
sale,  making  surveys  settling  the  particulars,  and  fixing 
the  prices  of  the  lots,  and  specific  performance  of  the  agreement  to 
purchase  was  decreed  by  Lord  Eldon  in  favour  of  the  trustee  for 
sale.  "As  to  the  objection,"  observed  his  Lordship,  "to  a  ])urchase 
by  the  trustee,  the  answer  is,  that  a  trustee  may  biiy  from  the  cestui 
que  trust,  provided  there   is   a  distinct  and  clear  contract,  ascer- 

16   WHITE  ox   EQUITY.  241 


*  180  FOX  V.  MACKRETH. 

tained  to  be  siich  after  a  jealous  and  scrupulous  examlnption  of  all 
the  circuaistances,  that  the  cestui  que  trust  intended  the  trustee 
should  buy;  and  there  is  no  fraud,  no  concealment,  nc  advantage 
taken  by  the  trustee,  of  information  acquired  by  him  iij  the  char- 
acter of  trustee.  I  admit  it  is  a  difficult  case  to  make  out,  wher- 
ever it  is  contended  that  the  exception  prevails.  The  principle  was 
clearly  recognized  in  Fox  v.  Mackreth,  and  was  established  long  be- 
fore. The  principle  upon  which  I  ever  held  that  case  right  stands 
upon  this  only :  not  that  Mackreth  might  not  have  purchased  from 
Fox,  and  would,  not  have  been  entitled  to  the  increase;  but  that  he 
had  not  been  placed  in  circumstances  to  make  that  contract."  See 
also  Morse  v.  Royal,  12  Ves.  355,  and  Clarkey.  Siuaile,  2  Eden,  134, 
in  both  which  cases  purchases  by  trustees  were,  though  with  some 
reluctance,  sustained;  and  see  the  remarks  of  "Sir  J.  Romillij,  M.  R., 
in  Denton  v.  Donner,  23  Beav.  285;  see  also  In  re  M'Kenna's  Esfate, 
13  Ir.  Ch.  Rep.  239;  Beale  v.  Billing,  Id.  250;  Luff  v.  Lord,  34 
Beav.  220;  Franks  v.  Bollans,  3  L.  R.  Ch.  App.  717. 

In  a  recent  case  (where,  it  will  be  observed,  the  suit  was  a  friendly 
one),  a  piirchase  by  the  trustees  of  a  settlement,  from  the  surviving 
trustee  for  the  sale  of  property  under  a  will  was  sustained,  although 
the  trustee  tmder  the  will  was  beneficially  interested,  both  under  the 
settlement  and  will,  and  being  a  solicitor,  acted  in  the  conduct  of 
the  purchase  {hui  uMh  perfect %)ropriety)  for  the  trustees,  who  took 
no  active  part  therein.     See  Hickleij  v.  Hickley,  2  Ch.  D.  190. 

A  solicitor,  however,  of  the  cestui  que  trusts  has  no  general  au- 
thority to  consent  to  a  purchase  by  the  trustee:  Downes  v.  Gi'aze- 
brook,  3  Mer.  209. 

It  seems  that  when  all  thecestuis  que  trust  are  sui  juris  they  might 
consent  to  a  trustee  bidding  at  a  sale.  Ex  parte  James,  8  Ves  352. 
[A  cestui  que  trust  may  so  acquiesce  in  and  confirm  a  sale  as  to  estop 
himself  from  objecting  to  it:  Mitlford  v.  Minch,  3  Stock.  Ch.  16  ; 
Hallman's  Est.,  13  Phila.  562. 

If  a  cestui  que  trust  ratifies  the  sale  it  cannot  be  set  aside  by  a 
stranger:  Boerum  v.  Schenck,  41  N.  Y.  182;  Johnson  v.  Bennett, 
39  Barb.  237;  Jackson  v.  Van  Dalbsen,  5  Johns.  Ch.  43.] 

The  Court  however  will  not  ordinarily  give  a  trustee  leave  to  bid, 
because  he  must  almost  necessarily,  from  his  position,  have  acquir- 
ed much  information  relative  to  the  property,  and  the  Court  could 
feel  no  security  that  he  would  do  his  duty  and  communicate  this 
information  so  as  to  raise  the  price,  if  he  had  a  prospect 
[*180]  of  becoming  the  purchaser:  *  Tennant  v.  Trenchard,  4  L. 
R.  Ch.  App.  547. 

The  rule  is,  that  if  those  who  are  interested  in  the  estate,  insist 
that  a  trustee  ought  not  to  be  allowed  to  bid,  the  Court  will  give  so 
much  weight  to  their  wishes  as  to  say  that  until  all  other  ways  of 
selling  have  failed,  he  shall  not  be  allowed  to  buy:  per  Lord  Hath- 
erley,  C,  in  Tennant  v,  Trenchard,  4  L.  R.  Ch,  App.  547.  [If  the 
cestui  que  trust  objects,  the  trustee  cannot  purchase:  Chorijenning's 
242 


FOX  V.  MACKRETII.  *  181 

Appeal,  32  Pa.  St.  315,  and  sncb  apurohaso  can  bo  questioned  only 
by  the  cestui  que  trust:  Newcomb  v.  Brooks,  10  W.  Va.  32;  Larco 
V.  Casanenava,  30  Cal.  560.] 

But  if  the  Court  is  satistied  that  no  purchaser  at  an  adequate 
price  can  be  found,  then  it  is  not  impossible  that  the  plaintiff  may 
be  allowed  to  make  ])roposalH  and  to  become  the  purchaser:  lb. 

A  merely  nominal  trustee,  as  for  instance  a  trustee  who  has  dis- 
claimed, without  ever  acting  in  the  trust,  may  become  a  purchaser 
(Stacey  v.  Elj^h,  1  My.  &  K.  195;  Chambers  v.  Waters,  3  Sim.  42), 
as  may  also  a  mere  trustee  to  preserve  contingent  remainders  [Paries 
V.  White,  11  Ves.  209,  220;  Sutton  v.  Jones,  15  Ves.  587;  Naylor 
V.  Winch,  1  S.  &  S.  567);  or  a  person  who  is  a  bare  trustee  in  fee 
for  another  in  fee,  without  any  duties  to  perform  (Pooley  v.  Qiiilter, 
4  Drew.  189;  Denton  v.  Donner,  23  Beav.  280,  290).  The  mere 
fact,  however,  that  a  receiver  has  been  appointed  will  not  reduce  a 
trustee  with  duties  to  perform  into  the  position  of  a  mere  nominal 
trustee:   Tennant  v.  Trenchard,  4  L.  R.  Ch.  App.  537,  54(). 

Under  the  statutes  for  the  redemption  of  the  land  tax,  the  Lords 
Commissioners  are  placed  in  the  position  of  vendors;  and  therefore, 
if  trustees  should  purchase  the  property  of  the  trust  under  those 
acts,  as  they  would  not  be  purchasing  from  themselves  biit  from  the 
Lords  Commissioners,  the  transaction  would  be  valid:  Beaden  v. 
King,  9  Hare,  499.  But  see  and  consider  Grover  v.  Hugel,  3  Russ. 
428;   Whidborne  v.  Ecclesiastical  Commissioners,  7  Ch.  D.  380. 

The  circumstance  that  two  parties  stand  towards  each  other  in  the 
relation  of  trustee  and  cestui  que  trust  does  not  affect  any  dealing 
between  them  unconnected  with  the  subject  of  the  trust:  Knight  v. 
Majoribanks,  2  Mac.  &  G.  10. 

A  trustee  for  infants  or  persons  under  disability  cannot  purchase 
the  trust  estate  unless  by  leave  of  a  Court  of  equity,  because  persons 
not  siii  juris  cannot  enter  into  any  contract  with  him  which  would 
have  the  effect  of  removing  him  from  the  character  of  trustee,  which, 
as  we  have  already  seen,  can  be  done  by  cestuis  que  trust,  who  are 
sui  juris.  Tlie  terms  upon  which  such  trustees  might  purchase, 
"was  a  bill  filed:  and  the  trustee  saying  so  much  is  bid,  and  that 
he  would  give  more.  The  Court  would  examine  into  the  circum- 
stances; ask  who  had  the  conduct  of  the  transaction;  whether  there 
was  any  reason  to  sxippose  the  premises  could  be  sold 
better;  and,  *  upon  the  resiilt  of  that  inquiry,  would  let  [  *  181] 
another  person  prepare  the  particular  and  let  the  trustee 
bid:"  per  Lord  Alvanley,  M.  R.,  Campbell  v.  Walker,  5  Ves.  682; 
S.  C,  13  Ves.  601.  See  also  1  Ball  &  B.  418,  and  Farmer  v.  Dean,  32 
Beav.  327;  Aberdeen  Railway  Co.  v.  Blackie,  1  Macq.  H.  L.  C.  472. 

These  principles  apply  with  peculiar  force  to  a  committee  of  a 
lunatic's  estate.  The  Court  has  even  gone  so  far  as  to  refuse  to 
conlirm  a  lease  to  a  committee,  though  it  was  approved  by  the  Mas- 
ter as  beneficial  to  the  estate  of  the  lunatic.   Shelf,  on  Lunacy,  446. 

The  doctrine  which  is  applicable  to  purchases  by  trustees  applies 

243 


*  1  82  FOX  V.  MACKRETH. 

also  to  purchases  by  persons  acting  in  any  fiduciary  capacity,  which 
imposes  upon  them  the  obligation  of  obtaining  the  best  terms  for 
the  vendor,  or  which  has  enabled  them  to  acquire  a  knowledge  of 
the  property.     [Maryland  Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242.] 

Directors  of  companies  being  trustees  for  the  shareholders  they 
cannot  purchase  shares  from  the  chairman  of  the  company,  who  is 
in  fact  their  co-trustee,  unless  authorized  so  to  do  by  the  constitu- 
tion of  the  company  or  the  deed  of  settlement:  Hodgkinson  v.  The 
National  Live  Stock  Insurance  Company,  26  Beav.  473;  4  De  G.  & 
Jo.  422. 

[A  trustee  for  bondholders  cannot  deal  in  the  bonds  for  his  own 
benefit,  or  lease  a  road  to  a  company  of  which  he  is  a  stockholder. 
Ashuelot  R.  R.  v.  Elliott,  57  N.  H.  397.] 

So  the  director  of  a  company,  being  a  trustee  for  the  company, 
is  as  such  precluded  from  dealing  on  behalf  of  the  company,  with 
himself  or  the  firm  of  which  he  is  a  partner,  and  he  must  account 
to  the  company  for  all  the  profits  he  may  make  by  such  dealing: 
Aberdeen  Railway  Company  v.  Blaikie,  1  Macq.  Ho.  Lo.  461;  Ben- 
son v.  H'eathoryi,  lY.  &  C.  C.  C.  326;  Flanagan  v.  Great  Western 
Railway  Company,  7  L.  R.  Eq.  116;  Albion  Steel  &  WireComjoany 
V.  Martial,  1  Ch.  T>.  680;  In  re  Imperial  Land  Company  of  Marseil- 
les, Ex  parte  Larking,  4  Ch.  D.  566;  The  Liquidators  of  the  Imper- 
ial Mercantile  Credit  Association  v.  Coleman,  6  L.  R.  Ho.  Lo.  189. 

So  also  must  his  partner,  although  he  be  in  no  way  connected 
with  the  company;  for  if  the  transaction  is  a  partnership  transac- 
tion, the  partners  are  liable  jointly  and  severally  to  the  company. 
Ih.     See  2  Set.  Dec.  1359,  1360,  4th  Ed. 

Although,  however,  a  person  may  have  agreed  to  become  a  di- 
rector in  a  company  forming  for  the  purpose  of  buying  and  carry- 
ing on  a  business  belonging  to  a  firm  with  which  he  is  in  the  habit 
of  dealing,  he  may  afterwards,  previous  to  the  incorporation  of  the 
company,  enter  into  contracts  with  the  firm,  and  will,  in  the  ab- 
sence of  fraud,  not  be  compelled  to  account  to  the  company  for  any 
profits  he  may  have  made  thereby:  Albion  Steel  &  Wire  Company  v. 

Martin,  1  Ch.  D.  580. 
[  *  182  ]  But  persons  about  to  become  *  directors  of  a  proposed 
company  will  not  be  allowed  to  accept  money  to  purchase 
shares  to  qualify  them  for  office  from  a  person  about  to  become  a 
vendor  to  the  company,  and  with  whom  it  was  their  duty  to  deal  as 
trustees  for  the  company,  and  such  money  will  in  contemplation  of 
a  Court  of  Equity  be  held  to  belong  to  the  company,  and  if  it  were 
applied  by  the  directors  in  the  purchase  of  shares,  such  shares 
would  be  considered  to  l^e  unpaid  for,  and  the  directors  liable  on 
the  winding  up  of  the  com-p^kUj  to  be  put  on  the  list  of  contributories 
in  respect  of  those  shares.  See  In  re  Canadian  Oil  Works  Corpor- 
ation, Hay^s  Case,  10  L.  R.  Ch.  App.  593,  See  also  Etna  Insur- 
ance Company,  In  re  Owens,  7  I.  R.  Eq.  325,  424;  McKay^s  Case,  2 
Ch.  D.  1. 

244 


FOX  V.  MACKRETII.  *  183 

And  if  the  consideration  from  the  promoters  as  an  inducement 
to  a  person  to  become  a  director,  has  been  a  gift  of  fully  paid-up 
shares,  he  may  be  compelled  at  the  option  of  the  company  either 
to  transfer  tbe  shares  to  the  company  or  to  account  to  the  company 
for  the  highest  value  to  be  attributed  to  the  shares  since  they  had 
been  in  his  possession,  with  interest  at  4  per  cent,  from  the  date  of 
the  transfer,  and  the  costs  of  the  action.  Nant-y-Glo  and  Blaina 
Ironworks  Company  v.  Grave,  12  Ch.  D.  738;  see  also  Phosphate 
Sewage  Company  v.  Hartmont,  5  Ch.  D.  394,  457. 

It  may  be  here  mentioned  that  in  dealing  with  such  cases  as  have 
been  lastly  considered,  the  same  principle  of  law  is  administered 
both  under  the  Companies  Act,  18G2,  and  in  actions  in  the  High 
Court,  and,  to  use  the  words  of  Bacon,  V.-C,  "  There  is  no  ground 
for  even  the  most  shadowy  distinction  between  the  two  cases."  See 
Nant-y-Glo  and  Blaina  Iromvorks  Co.  v.  Grave,  12  Ch.  D.  747.  In 
other  words,  in  exercising  jurisdiction  under  the  165th  Section  of 
the  Companies  Act,  1862  (25  &  26  Vict.  c.  89),  the  words  "misfeas- 
ance, or  breach  of  trust,"  have  been  held  to  c(jmprehend  all  these 
cases,  which  a  Court  of  Equity  has  dealt  with  under  the  larger 
and  comprehensive  head  of  actual  or  constructive  fraud. 

The  165th  Section  of  the  Companies'  Act,  1862  (omitting  parts 
not  material  for  the  present  purpose)  enacts  that  where  in  the  course 
of  the  winding  up  of  any  company  under  the  Act,  it  appears  that 
any  past  or  present  director  has  been  guilty  of  any  misfeasance  or 
breach  of  trust  in  relation  to  the  company,  the  Court  may,  on  the 
application  of  any  liquidator,  creditor  or  contributory  of  the  com- 
pany, examine  into  the  conduct  of  such  director,  and  compel  him 
to  contribute  such  sums  of  money  to  the  assets  of  the  company  by 
way  of  compensation  in  respect  of  such  misfeasance  or  breach  of 
trust  as  the  Court  thinks  just. 

*  Hence  it  has  been  held  that  when  directors  of  a  [  *  183  ] 
proposed  company  have  received  from  the  promoters 
money  (In  re  Englefield  Colliery  Company,  8  Ch.  D.  388),  or  a 
gift  of  fully  paid  up  shares,  they  must  account  to  the  liquidator 
for  the  money  or  the  full  value  of  the  shares  at  the  time  of  the 
present,  or  to  account  for  the  thing  itself,  or  its  proceeds  if  it  had 
increased  in  value.  In  re  Morvah  Consols  Tin  Mining  Company, 
McCay's  Case,  2  Ch.  D.  1.  In  re  Caerphillij  Colliery  Company, 
Pearson's  Case,  4.  Ch.  D.  222;  5  Ch.  D.  336,341;  In.re  British 
Provident  Life  and  Guarantee  Association,  Re  Ruvigne's  Case,  5 
Ch.  D.  306;  Onnerod's  Case,  25  W.  R.  765;  In  re  Diamond  Fuel 
Company,  Mitcalfe's  Case,  13  Ch.  D.  169.  In  re  Carriage  Co-oper- 
ative Supply  Association,  28  Ch.  T>.  322. 

And  when  the  present  to  the  director  consisted  of  shares  at  a 
price  below  the  value,  he  has  been  charged  with  or  compelled  to 
make  good  to  the  company  the  full  possible  value  of  the  shares  less 
what  he  paid  for  them.  In  re  West  Jewell  Tin  Mining  Company, 
Weston's  Case,  10  Ch.  D.  579. 

245 


*  184  FOX  V.  MACKRETH. 

The  director  is  further  chargeable  with  interest  at  4  per  cent 
from  the  time  he  received  the  shares  and  costs.  Nant-y-Glo  and 
Blaina  Iromvorks  Company  v.  Ch^ave,  12  Ch.  D.  738. 

When,  however,  shares  without  consideration  are  allotted  to  some 
of  the  director  of  a  company,  and  at  the  time  the  transaction  was 
entered  into  and  completed,  every  member  knew  of  the  transaction 
and  accepted  it,  and  it  was  not  then  intended  that  any  others  should 
become  members  of  the  company,  the  doctrine  that  directors  may 
not  make  a  profit  is  inapplicable,  neither  is  there  any  fraud,  so  that 
they  cannot  be  charged  with  misfeasance  under  the  165th  section. 
In  re  British  Seamless  Paper  Box  Company,  17  Ch.  D.  467.  See 
also  In  re  Ambrose  Lake  Tin  and  Copper  Mining  Company,  Ex 
parte  Taylor,  14  Ch.  D.  390. 

And  the  result  would  be  the  same  even  if  some  fresh  share- 
holders, in  order  to  obtain  an  increase  of  capital,  were  about  a  year 
afterwards  admitted.  In  re  British  Seamless  Paper  Box  Company, 
17  Ch.  D.  467. 

But  if  shortly  after  the  transaction  a  prospectus  had  been  issued 
and  the  public  had  been  invited  to  come  in  and  take  shares,  no 
Court  would  have  listened  to  directors  who  said  that  it  was  not  in- 
tended to  take  in  fresh  members.     lb.  479.     Per  Cotton,  L.  J. 

It  has,  however,  been  decided,  that  where  the  directors  of  a  pro- 
posed company  received  from  the  intended  vendor  to  the  company, 
not  money  but  fully  paid  up  shares,  allotted  to  the  vendor  as  part 
of  the  consideration   for  the  sale,  the    directors  although 
[  *  184  ]  liable  to   the  company  for  their   breach  *  of  trust,  could 
not    be    put  on    the  list    as    contributories    in    respect 
of     such    shares:     In    re    Westeryi    of   Canada    Oil,    Lands    and 
Works  Compayiy,   Carting,  Hespeler  and  WaUKs  Cases,  1  Ch.   D. 
115;  where  the  Lords  Justices  discharged  the  order  of   the  Master 
of  the  Eolls  (reported  20  L.  E.  Eq.  580),  but  without  prejudice  to 
any  application  that  might  be  made  against  the  directors  under  the 
Companies'  Act,  1862  (25  &  26  Vict,  c  89),  sec.  165,  or  otherwise, 
on  the  ground  that  they  had  entered  into  a  corrupt  bargain  with 
the  vendor.     "  There  certainly  are  three  things,"  said  Mellish,  J., 
"  any  of  which  the  company  might  do.     They  might  say  in  the  first 
instance,  '  These  shares  never  ought  to  have  been  allotted  to  the  di- 
■  rectors  at  all;'  and  if  they  were  now  valuable  shares,  they  could 
say,  '  Transfer   them   back  to  us,  for  you  never  were  entitled   to 
them.'     Secondly,  if  the  directors  had  sold  the  shares,  and  made  a 
large  profit  out  of  them,  the  company  could  have  said,     '  Those 
shares  were  our  shares,  you  were  trustees  for  us,  and  therefore  you 
shall  hand  over  to  us  the  entire  profit  you  have  made  by   selling 
them; '  and  thirdly,  the  company  might  say,  'Although  you  have  made 
no  profit  by  selling  these  shares,  yet,  by  having  had  them  allotted 
to  you,  you  deprived  us  of  the  power  of  allotting  them  to  other  per- 
sons, therefore  you  must  pay  us  the  sum  which  we  have  lost  by  rea- 
son of  oiu'  being  deprived  of  the  right  of  allotting  those  shares  to 
246 


FOX  V.  MACKRETII.  *  185 

other  persons  who  would  have  paid  thorn  up.'  Of  those  three 
remedies  the  liquidators  may,  in  my  judgment,  take  whichever  is 
most  beueiicial  to  the  company.  But  can  they  do  more?  Can  they 
say,  'Although  the  shares  which  you  have  taken,  which  were  the 
property  of  the  company,  were  absolutely  worthless,  or  worth  very 
little,  both  at  the  time  when  you  took  thorn,  and  ever  since,  never- 
theless, inasmuch  as  nominally  tlioy  were  lOO/.  shares,  we  will  make 
you  liable  for  that  full  sum  of  100/.  on  each  share'?  In  my  judg- 
ment that  would  be  inflicting  an  arbitrary  punishment  on  a  trustee 
for  his  breach  of  trust.  It  would  not  be  indemnifying  the  cestui 
que  trust  for  the  injury  ho  had  sustained,  but  would  be  giving  him 
a  sum  which,  if  the  breach  of  trust  had  never  been  committed,  he 
would  not  have  acquired."  See  and  consider  Ex  x>ct,rte  Daniell,  1 
De.  G.  &  Jo.  372. 

Members,  moreover,  of  a  company,  at  a  meeting  duly  called,  may, 
on  a  sale  of  its  business,  give  part  of  the  i)urchase-raonoy  to  the 
directors  by  way  of  compensation  for  their  loss  of  office.  See 
Sontliall  V.  British  Mutual  Life  Assurance  Society,  G  L.  R.  Ch.  App. 
014,  in  which  case  a  clause  in  an  agreement  for  the  amalgamation  of 
two    insurance     companies,   providing   that  part    of  the 

*  purchase- money  should  be  paid  to  the  directoi'sof  the  [  "^•-  185  ] 
selling  company  by  way  of  bonus,  was  held  by  the  Lords 
Justices,  affirming  the  decision  of  the  Master  of  the  Kolls  (reported 
11  L.  R.  Eq.  65),  not  to  invalidate  the  amalgamation.  "It  is  said," 
observed  James,  L.  J.,  "  that  it  is  a  violation  of  the  principles  of 
this  Court,  that  the  directors  should  have  a  bonus  of  600/.  each.  I 
agree,  if  this  had  been  done  seci'etly,  in  all  probability  it  could  not 
be  supported.  But  it  was  done  openly,  and  appeared  on  the  face 
of  the  agreement.  There  was  nothing  in  itself  wrong  in  such  an 
arrangement,  and  it  was  known  to  all  the  shareholders.     They  said, 

*  We  are  going  to  get  rid  of  the  chairman  and  the  directors,  and  we 
think  it  right  that  we  should  give  them  some  compensation.'  It 
would  be  monstrous  to  say  that  a  transaction  otherwise  reasonable, 
could  be  vitiated  by  such  a  clause  as  this." 

Any  secret  stipulation,  however,  by  the  directors,  negotiating  an 
amalgamation  for  a  commission  or  a  share  thereof,  will  be  set  aside: 
General  Exchange  Bank  v.  Horner,  9  L.  R.  Eq.  480. 

The  promoters  of  a  proposed  company  stand  in  a  fiduciary  rela- 
tion to  it,  and  are  therefore  bound  to  make  a  full  and  fair  disclosure 
of  their  interest  in  the  property.  When  therefore  promoters  and 
others,  under  the  name  of  a  syndicate,  had  suppressed  the  facts  that 
they  were  the  real  vendors,  and  that  they  gave  for  the  property  less 
than  the  price  that  the  company  were  about  to  give,  and  had  ob- 
tained the  acceptance  of  the  contract  from  a  board  of  their  own  cre- 
ation, and  had  inserted  in  the  prospectus  statements  contrary  to  the 
facts,  which  would  lead  intending  shareholders  to  believe  that  the 
contract  had  been  approved  by  all  the  directors,  it  was  held  by  the 
Coui't  of  Appeal  that  thei'e  was  no  contract  binding  on  the  company, 

247 


*  18G  FOX  V.  MACKRETII. 

and  that  the  sale  to  the  company  must  be  set  aside,  and  judgment 
given  against  the  members  of  the  syndicate  for  repayment  of  the 
pui'chase-money  (The  Neiv  Sombrero  Phosphate  Company  v.  Er- 
langer,  5  Ch.  D.  73,  affirmed  Dom.  Proc.  3  App.  Cas.  12l8,  nom 
Erlanger  v.  The  Neiv  Sombrero  Phosphate  Company ;  2  Set.  Dec. 
1357,  4th  Ed.  See  also  The  Lindsay  Petroleum  Company  v.  Hurcl, 
•5  L.  E..  P.  C  221).  And  it  was  also  held  that  the  estate  of  a  de- 
ceased member  of  the  syndicate  was  liable  on  the  ground  that  he 
was  a  partner,  and  that  the  action  therefore  did  not  die  with  him 
{The  Neiv  Sombrero  Phosphate  Company  v.  Erlanger,  5  Ch.  D.  73), 
bat  it  seems  that  directors  who  were  not  members  of  the  syndicate 
were  not  liable,     lb. 

And  although  a  company  which  has  purchased  a  concern  may  have 
compromised  a  suit  with  the  vendors  instituted  for  the  res- 
[  *  186  ]  cission  of  the  contract,  it  may  *  nevertheless  proceed 
against  the  promoters  who  stood  in  a  fiduciary  relation  to 
the  company,  and  recover  from  them  a  secret  profit  which  they  may 
have  made  out  of  the  price  payable  under  the  contract  (Bagnall  v. 
Carlton,  6  Ch.  D.  371;  27^6  Emma  Silver  Mining  Cqinj^any  v.  Grant, 
11  Ch.  D.  918;  Emma  Silver  Alining  Company  v.  Lewis,  4  C.  P.  D. 
396;  Whaley  Bridge  Calico  Printing  Company  v.  Green,  5  Q.  B.  D. 
109),  but  the  promoters  would  be  entitled  to  be  allowed  their  ex- 
penses properly  incurred  in  bringing  out  the  company  (Bagnall  v. 
Carlton,  6  Ch.  D.  371;  Emma  Silver  Mining  Company  v.  Grant,  11 
Ch.  D.  918),  but  not,  it  seems,  to  any  commission  (Bagnall  v.  Carl- 
ton, 6  Ch.  D.  371;  Emma  Silver  Mining  Company  v.  Grant,  11  Ch, 
D.  918);  but  where  the  plaintiffs  in  their  bill  offered  to  allow  the 
promoters  a  commission,  it  was  held  that  they  could  not  retract  their 
offer,  and  that  a  fair  commission  must  be  allowed  (Bagnall  v.  Carl- 
ton, 6Ch.  D.  371). 

And  if  such  promoters  present  a  petition  for  liquidation,  the  com- 
pany will  be  at  liberty  to  go  in  and  prove  against  their  estate  for  the 
sum  found  due  from  them  in  any  action,  it  not  being  a  demand  in 
the  nature  of  unliquidated  damages,  arising  otherwise  than  by  rea- 
son of  a  contract  (Emma  Silver  Mining  Company  v.  Grant,  17  Ch. 
D.  122).  Such  a  debt,  moreover,  being  incurred  by  fraud,  and  a 
breach  of  trust,  it  was  held  to  be  within  sect.  49  of  the  Bankruptcy 
Act,  1869,  and  the  promoters  were  held  not  to  be  released  from  such 
debt  by  their  discharge,  and  were  ordered  personally  to  pay  the  debt 
to  the  company,  or  so  much  thereof  as  should  not  be  received  by  the 
company  under  the  liquidation:  lb.  And  see  now  the  Bankruptcy 
Act,  1883,  (46  &47  Vict.  c.  52),  ss.  30,  37. 

The  legislature  has  interposed  to  prevent  the  frauds  too  often  com- 
mitted in  the  formation  of  companies.  The  Joint  Stock  Companies 
Act  (7  &  8  Vict.  c.  110),  by  the  29th  section  enacts  that  if  any  con- 
tract or  dealing  (with  certain  exceptions)  shall  be  entered  into  in 
which  any  director  shall  be  interested,  then  the  terms  of  such  con- 
tract or  dealing  shall  be  submitted  to  the  next  general  or  special 
248 


FOX  V.  MACKRETII.  *  187 

meeting  of  the  Bhareholdt^rs  to  be  summoned  for  that  purpose,  and 
that  no  such  contract  shall  have  force  until  approved  and  confirmed 
by  the  majority  of  votes  of  the  shareholders  present  at  such  meet- 
ing. "  The  object  of  the  clause,"  Observes  Wood,  V.  C,  "  is  to  pre- 
vent a  person,  who  is  a  trnstee,  from  entering  into  contracts  on  be- 
half o^  his  cestnis  que  trust  in  which  he  is  himself  personally  inter- 
ested. The  exception  to  the  prohibition  introduced  by  the  words 
'  no  such  contract  shall  have  force  until  ajiproved  and 
*  confirmed'  is  intended  to  afford  an  opportunity  to  the  [  *  187] 
cestui  que  trust  to  consider  whether  he  will  ratify  any  such 
contract."  Re  South  Essex  Gas,  &c.,  Co.,  Johns.  483.  See  Ernest 
v.  Nicholls,  6  Ho.  Lo.  Ca.  401 ;  Murray's  Executors'  Case,  5  De  G. 
Mac.  &  G.  746. 

A  contract  between  a  company  and  a  person  who  acts  as  a  direc- 
tor, whether  legally  or  not,  is  within  the  prohibition  of  the  statute: 
Re  South  Essex  Gas,  &c.,  Co.  Johns.  480.  The  exception  in  the 
29th  section  of  the  statute,  of  contracts  for  articles  or  services  the 
subject  of  the  proper  business  cf  the  company,  refers  to  articles  and 
services  supplied  or  rendered  by  the  company  to  a  director,  and  not 
to  those  supplied  by  a  director  to  the  company:  lb. 

The  Joint  Stock  Companies  Act  (7  &  o  Vict.  c.  100)  has  been  re- 
pealed by  the  Companies  Act,  1862  (25  &  26  Yict.  c^89),  which 
has  no  section  corresponding  with  the  29th  section  of  7  &  8  Vict.  c. 
100;  but  amongst  the  regulations  contained  in  the  1st  schedule  there- 
of it  is  enacted  that  "the  office  of  director  shall  be  vacated  if  he  holds 

any  other  office  or  place  of  profit  under  the  company 

If  he  is  concerned  in  or  participates  in  the  profits  of  any  contract 
with  the  company.  But  the  above  rules  are  subject  tp  the  follow- 
ing exception:  that  no  director  shall  vacate  his  office  by  reason  of 
his  being  a  member  of  any  company  which  has  entered  into  con- 
tracts with  or  done  any  work  for  the  company  of  which  he  is  a  di- 
rector; nevertheless,  he  shall  not  vote  in  respect  of  any  such  con- 
tract or  work;  and  if  he  does  so  vote,  his  vote  shall  not  be  counted." 
Sect.  57.     See  sect.  165,  ante,  p.  182. 

A  mortgagee  {Downes  v.  Grazebrook,  3  Mer.  200;  Waters  v.  Groom, 
11  C.  &  F.  684)  or  an  annuitant  (In  re  Bloijes  Trust,  1  Mac.  &  G. 
488;  S.  C,  nom.  Lewis  v.  Hillman,  3  Ho.  Lo.  607,  630),  with  power 
of  sale,  being  in  fact  a  trustee  for  sale,  cannot,  either  directly  or  by 
means  of  his  solicitor,  except  by  the  express  authority  of  his  cestui 
que  trust,  purchase  the  estate  upon  which  the  mortgage  or  annuity 
is  a  charge.  See  also  Ingle  v.  Richards,  28  Beav.  361.  [If  a  trustee 
purchases  a  mortgage  at  a  discount  he  cannot  claim  the  benefit: 
Green  v.  Winter,  7  Am.  Dec.  475.] 

Nor  can  the  solicitor  conducting  the  sale  do  so  on  his  own  account, 
at  any  rate  without  a  full  explanation  to  the  parties  interested,  and 
putting  them  in  full  possession  of  the  facts,  and  a  knowledge  that 
he  was  to  become  purchaser  for  himself.     lb.     See  also  Orme  v. 

249 


*  1S8  FOX  V.  MACKRETH. 

Wru)ht,  3  Jnr.  19;  Robertson  v.  Norris,  1  Giff.  421,  428;  4  Jur.  N. 
S.  155. 

So,  likewise,  when  a  sale  by  auction  took  place  under  the  direc- 
tion of  a  building  society  as  mortgagees,  and  the  secretary  of  the 
society  openly  bid  for  and  became  the  purchaser  of  two  lots  on  his 
own  account,  although  there  was  no  proof  of  undervalue, 
[*  188]  *  it  was  held  by  North,  J.,  that  under  the  circumstances 
the  sale  to  the  secretary  could  not  be  maintained  as  against 
the  mortgagee,  Martinson  v.  Clowes,  21  Ch.  D.  857,  affirmed  \\'.  N. 
Feb.  28,  1885,  p.  41,  disappi'oving  of  Robertson  v.  Norris,  1  Giff. 
421.  [A  cestui  que  trust  may  either  ratify  or  set  aside  the  sale, 
whether  public  or  private  within  a  reasonable  time:  Alexander  v. 
Alexander,  46  Ga.  291;  Harrison  v.  McHenry,  9  Ga.  164.] 

A  mortgagee,  however,  does  not  ordinarily  stand  in  a  fiduciary 
position  towards  the  mortgagor,  so  as  to  render  a  purchase  of  the 
equity  of  redemption  by  him  from  the  mortgagor  {Knight  v.  Majori- 
ba)iks,  2  Mac.  &  G.  10;  and  see  Webb  v.  Rorke,  2  S.  &L.  661,  673; 
Waters  v.  Groom,  11  C.  &  F.  684;  Dobson  \.  Land,  8  Hare,  220; 
Rushbrook  v.  Lawrence,  8  L.  R.  Eq.  25;  5  L.  K.  Ch.  App  3)  [A 
person  may  sell  his  equity  of  redemption  the  day  after  the  mortgage 
has  been  created  if  he  chooses,  but  he  cannot  part  with  it  in  favor 
of  the  mortgage  at  the  instant  the  mortgage  is  granted :  "Wilson  v. 
Drumrite,  21  Mo.  325;  Pierce  r.  Robinson,  13  Cal.  125;  Clark  v. 
Condit,  3  C.  E.  Green,  358;  Pritchard  r.  Elton,  38  Conn.  434  ; 
McNees  v.  Swaney,  50  Mo.  391 ;  Eobinson  r.  Farelly,  16  Ala.  472  ; 
Eogan  V.  Walker,  1  Wis.  527;  Rankin  v.  Mortimere,  7  Watts,  372; 
Woods  i:  Wallace,  10  Harris,  171]  or  from  a  prior  mortgagee  sell- 
ing under  a  power  of  sale  (Shaic  v.  Bunny,  33  Beav.  494;  2  DeG. 
Jo.  &  Sm.  468)  impracticable,  even,  it  seems,  although  the  pur- 
chaser be  a  second  mortgagee  with  a  trust  for  sale  :  Kirkicood  v. 
Thompson,  2  Hem.  &  Mill.  392;  2  De  G.  Jo.  &  Sm.  613;  Locking 
V.  Parker,  8  L.  R.  Ch.  App.  39.  See,  however,  Parkinson  v. 
Hanbury,  1  Drew.  &  Sm.  143.  But  where  the  conveyance  with  a 
trust  for  sale  is  to  a  third  person,  he  being  a  trustee  for  both  parties, 
will  be  unable  to  purchase  :  Blennerhasseft  v.  Day,  2  Ball.  &  B. 
104,  133. 

Transactions,  however,  between  mortgagor  and  mortgagee  are 
viewed  with  considerable  jealousy,  and  the  sale  of  the  equity  of  re- 
demption will  be  set  aside  where,  by  the  influence  of  his  position, 
the  mortgagee  has  purchased  for  less  than  others  would  have  given, 
and  where  there  are  circumstances  of  misconduct  in  obtaining  the 
purchase:  Ford  v.  Olden,  3  L.  R.  Eq.  461:  and  see  Prees  v.  Coke, 
6  L.  R.  Ch.  App.  645,  649.  [Villa  v.  Rodriguez,  12  Wallace.  323  ; 
Russell  V.  Southard,  12  Howard,  154;  Brown  v.  Gaffney,  28111.  150; 
Baugher  r.  Merryman,  32  Md.  185.]  There  a  mortgagee,  who  was 
also  a  solicitor,  obtained  a  conveyance  from  the  mortgagor,  a  man 
in  humble  circumstances,  without  a  legal  adviser;  and  it  was  held, 

250 


FOX  V.  MACKRETH.  *  189 

that  the  onus  of  justifying  the  transaction,  and  showinrr  that  it  was 
right  and  fair,  was  thrown  upon  the  mortgagee. 

A  lease  from  the  mortgagor  in  distressed  circumstances  to  the 
mortgagee  may  be  set  aside:  Fo7'd  v.  Olden,  3  L.  R.  Eq.  461;  Hickes 
V.  Cooke,  4  Dow,  16. 

Wliore,  in  a  deed  creating  a  trust,  there  are  provisions  by  which 
the  trustees  making  certain  advances,  and  paying  off  part  of  a  mort- 
gage debt,  should  be  entitled  to  a  charge  on  the  estate;  it  seems 
even  if  a  trustee  making  such  an  advance  were  entitled  to  have 
such  a  mortgage  on  the  estate  as  would  empower  an  ordinary 
mortgagee  to  foreclose,  the  Court  would  not  allow  him,  by  reason 
of  his  fiduciary  position,  to  take  such  a  step,  as  being  inconsistent 
with  his  duty  as  trustee  to  preserve  the  estate.  See  Tennant  v. 
Tennant,  4  L.  R.  Ch.  App.  544;  and  the  observations  made  by 
Lord  Brougham  in  Hamilton  v.  Wright  (9  C.  &  F.   128). 

*  The  question  has  been  raised  whether  one  of  the  trus-  [  *  189  ] 
tees  of  a  charity  can  himself  with  propriety  become  a 
mortgagee  of  the  charity  property.  It  was  decided  in  the  affirma- 
tive in  the  case  of  Attorney -General  v.  Hardy,  1  Sim.  N.  S.  388.  In 
the  analogous  case,  however,  of  Forbes  v.  Ross  (2  Cox,  113),  it  was 
held  by  Lord  Thiirlow,  C,  that  trustees  having  power  to  lend  money 
on  personal  security,  could  not  lend  it  to  one  of  themselves,  so  that 
he  should  benefit  thereby,  his  Lordship  observing  that  "  he  pro- 
ceeded upon  this  single  ground  that  a  friisfee  canyiot  bargain  ivith 
himself  so  as  to  derive,  through  the  medium  of  the  contract,  any  de- 
gree of  forbearance  or  advantage  whatever  to  himself^  [A  man  in 
a  tiduciary  relation,  as  a  trustee  or  the  like,  cannot  in  this  capacity 
buy  or  sell  or  otherwise  deal  with  himself  in  his  individual  capac- 
ity: Griffin  u  Marine  Co.,  52  111.  130;  Collins  v.  Tilton,  58  Ind. 
374;  Taussig  v.  Hart,  58  N.  Y.  425;  Michond  v.  Girod,  4  How.  (U.  S.) 
503;  Rogers  v.  Tockett,  28  Ark.  290;  Remick  ?•.  Butterfield,  11 
Fost.  (N.H.)  70;  Rickey  v.  Hillman,  2  Halst.  180;  Boyd  v.  Hawk- 
ins, 2  Iredell,  304;  Cram  v.  Mitchell,  1  Sand.  Ch.  251;  Child  v. 
Brace,  4  Paige,  309;  Tynes  t'.  Grimskad,  Tenn.  Ch.  508;  Renew  v. 
Butler,  30  Ga.  954.]  This  principje  is  undoubtedly  sound,  and  it 
appears  to  be  applicable  to  a  case  of  a  mortgage  of  the  trust  prop- 
erty to  a  trustee,  as  well  as  to  the  case  of  a  loan  of  the  funds  of  the 
ti'ust  to  him. 

An  agent  or  solicitor  employed  to  sell  cannot  purchase  from  his 
principal,  unless  he  make  it  perfectly  clear  that  he  furnished  his 
employer  with  all  the  knowledge  which  he  himself  possessed  (Low- 
ther  \.  Loicfher,  ]S  Yes.  103;  and  see  the  great  case  of  The  York 
Buildings  Company  v.  Mackenzie,  8  Bro.  P.  C.  42,  Toml.  ed. ;  and 
see  S.  C,  3  Paton's  Scotch  App.  Cas.  578,  579,  where  the  judgments 
of  Lord  Thurlow  and  Lord  Loughborough  are  given  at  length; 
Watt-i.  Grove,  2  S.  &  L.  492;  Wh'ifcomb  v.  Minchin,  5  Medd.  91; 
Woodhouse  v.  Meredith,  1  J".  &  W.  204;  Oliver  v.  Court,  8  Price, 
127);  and  the  moment  it  appears  in  a  transaction  between  princi- 

251 


*  190  FOX  V.  MACKRETH. 

pal  and  agent  that  there  has  been  any  underhand  dealing  by  the 
agent, — that  he  has  made  use  of  another  person's  name  as  the  pur- 
chaser, instead  of  his  own,— however  fair  the  transaction  may  be 
in  other  respects,  from  that  moment  it  has  no  validity  in  equity: 
Trevehjan  v.  Charter,  9  Beav.  140;  Charter  v.  Trevehjan,  11  C.  &  F. 
714;  Lewis  v.  Hillmaii,  3  H.  L.  Cas.  607;  Walsham  v,  Stainton,  1 
De  G.  Jo.  &  Sm.  678;  M'Pherson  v.  TVatt,  3  App.  Ca.  254. 

It  is,  moreover,  well  settled  that  it  is  not  necessary  to  prove  that 
a  purchase  has  been  made  by  the  agent  at  an  undervalue.  "A 
principal  selling  to  his  agent  is  entitled  to  set  aside  the  sale  upon 
equitable  grounds,  whatever  may  have  been  the  price  obtained  for 
the  property,"  per  Sir  E.  Siigden,  L.  C,  in  Murphy  v.  O'Shea,  2  J. 
iSc  K  422.  In  Croive  v.  Ballard,  3  Bro.  C.  C.  117,  Lord  Thurloiv, 
thought  that  the  person  employed  to  sell  could  not  be  permitted  to 
buy,  and  even  if  that  were  done  with  the  knowledge  of  the  party 
selling,  it  could  not  be  supported;  and  that  the  principle  must  pre- 
vail, even  if  he  had  bought  fairly.  Lord  Thurloiv,  however,  it 
is  conceived,  did  not  mean  to  lay  down,  as  a  general 
[  *  190  ]  *  rule,  that  an  agent  could  in  no  case  purchase  from  his 
principal;  he  spoke  probably  with  reference  to  the  case 
he  was  deciding,  which  was  one  of  gross  fraud.  At  any  rate,  it  is 
clear  now,  that  an  agent  to  sell  can  purchase  from  his  employer,  if 
he  comply  with  the  rule  laid  down  in  Loivthery.  Lowther.  See  also 
Wentworth  v.  Lloyd,  32  Beav.  467,  affirmed  Dom.  Proc.  10  Jur.  N.  S. 
960. 

An  agent  for  sale  who  takes  an  interest  in  a  purchase  negotiated 
by  himself,  is  boimd  to  disclose  to  his  principal  the  exact  nature  of 
his  interest;  and  it  is  not  enough  merely  to  disclose  that  he  has  an 
interest,  or  to  make  statements  such  as  would  put  the  principal  on 
inquiry:  Dunne  v.  English,  18  L.  R.  Eq.  524;  Liquidators  of  The 
Imperial  Mercantile  Credit  Association  v.  Coleman,  6  L.  R.  Ho.  Lo. 
189,  194;  In  re  Morvah  Consols  Tin  Mining  Gompany,  McKay'' s 
Case,  2  Ch.  D.  1;  Faivcett  v.  Whitehouse,  1  Russ.  &  My.  132;  Hitch- 
ens  V.  Congrave,  1  Russ.  &  My.  150,  n. 

In  such  a  case  the  burden  of  proving  that  a  full  disclosure  was 
made  lies  on  the  agent,  and  is  not  discharged  merely  by  the  swear- 
ing that  he  did  so,  if  his  evidence  is  contradicted  by  the  plaintiff, 
and  not  corroborated:    Dunne  v.  English,  18  L.  R.  Eq.  524. 

An  agent  for  sale  when  he  has  once  made  the  contract  and  ter- 
minated his  agency,  may  purchase  the  property  he  has  sold  {Parker 
V.  McKeyina,  10  L.  R.  Ch.  App.  125, 126,  per  Mellish,  L.  J.),  but  such 
transaction  woul.d  be  looked  at  with  vejy  considerable  suspicion,  lb. 
[When  the  relation  of  principal  and  agent  has  been  terminated  and 
a  settlement  made,  actual  fraud  must  be  proved  in  order  to  disturb 
it:  Courtright  v.  Barnes,  2  McCarary,  532;  Barrow  v.  Rhinelander, 
1  Johns.  Ch.  550.] 

As  long,  however,  as  the  contract  remains  executory,  and  the 
trustee  or  agent  has  power  either  to  enforce  or  to  rescind  or  alter 
252 


FOX  V.  MACKRETII.  *  191 

14,  ho  cannot  repurchase  the  property  from  liis  own  purchaser,  ex- 
cept for  the  benefit  of  his  principal.  Parker  v.  M'Kenna,  10  L. 
R.  Ch.  App.  96,  125.  See  also  lie  Hay's  Case,  10  L.  E.  Ch.  App. 
51)8. 

An  ajrent  enjployed  to  sell  an  estate  may,  with  the  consent  of  his 
principal,  make  a  prolit  of  the  transaction,  as,  for  instance,  where 
the  bargain  between  th(^m  was  that  the  agent  should  have  what- 
ever the  estate  fetched  beyond  a  certain  sum:  Morgan  v.  Elford,  4 
Ch.  D.  352. 

The  same  objections  apply  to  an  auctioneer  employed  to  sell  pro- 
perty: Oliver  v.  Court,  8  Price,  127, 160;  Baskett  v.  Cafe,  4  De  G.  & 
Sm.  388. 

But  after  his  agency  is  terminated  by  the  sale  of  the  property,  he 
may,  it  seems,  buy  it  from  the  purchaser.  As,  for  instance,  in  the 
case  of  an  auctioneer,  when  he  has  knocked  the  estate  down,  and 
made  the  written  contract,  when  it  may  be  said  that  his  agency  has 
terminated:  Parker  \.  McKenna,  10  li.  R.  Ch.  App.  126,  per  Mel- 
lish,  L.  J.  Biit  even  in  that  case  the  Court  would  look 
*  with  considerable  suspicion  on  a  repurchase  by  such  an  [  *  191  ] 
agent  as  an  auctioneer,  from  the  person  to  whom  ho  sold 
the  estate,  because  it  would  always  be  extremely  difficult  to  find  out 
whether  there  had  not  been  some  previous  concert  and  understand- 
ing between  them:  lb. 

With  regard  to  an  agent  employed  in  the  management  of  an  es- 
tate, "  the  rule  of  the  Court,"  observes  Sir  Edward  Sugden,  L.  C.  of 
Ireland,  "  does  not  prevent  an  agent  from  purchasing  from  his  prin- 
cipal, but  only  requires  that  he  shall  deal  with  him  at  arm's  length, 
and  after  a  full  disclosure  of  all  that  he  knows  with  respect  to  the 
property:"  Murphij  v.  O'Shea,  2  J.  &  L.  425. 

But  it  seems  that  a  purchase  by  a  person  acting  in  that  capacity 
from  his  principal,  or  the  cestui  que  trust  of  his  principal,  will  be 
set  aside  upon  the  ground  alone,  that  the  vendor  had  no  competent 
or  disinterestedjr.dviser:  King  v.  Anderson,  8  I.  R.  Eq.  625,  revers- 
ing S.  C,  lb.  150.  See  also  Ahearne  v.  Hogan,  1  Dru.  310;  Eos- 
siter  V.  Walsh,  4  Dru.  &  AV.  485. 

An  agent  or  steward  may  also  take  a  lease  from  his  employer  or 
principal  {Lord  Selseij  v.  Ehoades,  2  S.  &  S.  41;  1  Bligh,  N.  S.  1); 
but  it  must  always  be  difficult  to  sustain  such  a  lease  in  a  court  of 
equity,  as  it  must  be  proved  that  full  information  has  been  imparted, 
and  that  the  agreement  has  been  entered  into  with  perfect  good 
faith:  Maloney  v.  Kernan,  2  D.  &  W.  31. 

If  an  agent  employed  to  make  a  purchase  purchases  for  himself, 
he  will  be  held  a  trustee  for  his  principal  {Lees  v.  Nuttall,  1  Russ. 
&  My.  53;  S.  C,  1  Taml.  282;  Chattock  v.  Mnller,  8  Ch.  D.  177)-, 
and  where  the  agency  extends  only  to  part  of  the  lands  included  in 
a  purchase,  and  there  is  some  uncertainty  as  to  which  were  intended, 
a  reference  may  be  directed  to  ascertain  them  (Chattock  v.  Muller, 
lb.),  and  also  the  price  to  be  paid.     lb. 

253 


*  192  FOX  V.  MACKRETII. 

Nor  will  an  agent  employed  to  purchase  bo  permitted,  unless  by 
the  plain  and  express  consent  cf  his  principal,  to  make  any  profit 
by  buying  and  becoming  a  seller  to  him.  [It  is  against  common 
honesty  and  jiistice  that  the  same  person  should  be  both  vendee  and 
vendor,  hence  an  attempt  to  so  act  is  a  fraud.  This  rule  applies  to 
all  persons  whose  duties  require  them  to  buy  or  sell  for  the  bene- 
tit  of  another:  Greenwood  v.  Spring,  54  Barb.  375;  Carter  v.  Thomp- 
son, 41  Ala.  375;  Morris  v.  Taylor,  49  111.  18;  Building  Association 
V.  Caldwell,  25  Md.  423.]  This  doctrine  is  recognised  by  Lord  Thur- 
loiv  in  East  India  Company  v.  Henchman,  1  Ves.  jun.  289,  where 
he  observes,  "  If,  being  a  factor,  a  man  buys  up  goods  which  he 
ought  to  furnish  as  factor,  and,  instead  of  charging  porterage  duties, 
or  accepting  a  stipulated  salary,  he  takes  the  profits  and  deals  with 
his  constituent  as  a  merchant,  this  is  a  fraud  for  which  an  account 
is  due."  See  Kimber  v.  Barber,  8  L.  K.  Ch.  App.  50.  There  the 
defendant.  Barber,  knowing  that  Kimber,  the  plaintiff,  was  anxious 
to  obtain  shares  in  a  certain  company,  on  the  19th  of  January,  1870, 
called  on  the  plaintifl  and  informed  him  that  he.  Barber, 
[*192]  knew  of  264  shares  at  3Z.  Barber  was  *  then  autliorised 
by  Kimber  to  buy  the  shares  at  3Z.  The  shares  were  ac- 
cordingly bought,  sixty-four  of  them  were  transferred  to  Kimber, 
and  200  to  his  nominee,  one  T.  G.  Taylor,  a  broker  being  the  trans- 
feror, and  Kimber  paying  Barber  795Z.  for  the  shares  and  the  transfer 
duty. 

It  appeared  subsequently  that  Barber,  being  aware  that  the  plain- 
tiff's desire  to  obtain  the  shares  on  the  13th  of  January,  wrote  to 
Jones,  asking  as  for  a  friend,  whether  he  would  sell  his  shares,  and 
on  the  17th  of  January  concluded  an  agreement  with  Jones  for  the 
pm-chase  of  the  shares,  at  21.  a  share,  and  forwarded  him  a  blank 
transfer.  After  the  interview  between  the  plaintiff  and  Barber,  on 
the  19th  of  Janiiary,  Barber  instructed  Taylor  to  prepare  bought 
and  sold  notes  to  the  effect  that  the  shares  had  been  bought  through 
Taylor,  as  the  broker,  and  the  shares  were  afterwards  transferred 
by  Jones  to  Taylor.  As  Barber  had  not  sufficient  money  to  pay  for 
all  the  shares,  some  of  them  were  lent  to  him  by  Taylor,  for  the  pur- 
pose of  being  transferred  to  Kimber.  Kimber  had  transferred  ten 
out  of  the  sixty-four  shares  to  other  persons,  so  that  at  the  time  when 
the  bill  was  filed,  he  held  only  fifty-four  shares.  Lord  RomiUy,  M. 
E.,  dismissed  the  bill  without  costs,  holding  that  no  relief  could  be 
given  to  the  plaintiff  as  he  had  transferred  210  out  of  the  264  shares, 
and  had  thus  rendered  it  impossible  to  set  aside  the  transaction. 
It  was  held,  however,  by  Lord  Selborne,  L.  C,  reversing  the  decree 
of  the  Master  of  the  Rolls,  that  as  Barber  purchased  the  264  shares 
from  Jones,  as  agent  for  the  plaintiff,  the  plaintiff  was  entitled  to 
the  benefit  of  that  purchase,  and  that  Barber  ought  to  pay  to  the 
plaintiff  the  sum  of  264L,  being  the  difference  between  the  prices 
paid  by  the  plaintiff  and  Barber.  "  It  seems  to  me,"  said  his  Lord- 
ship, "  the  common  relief — the  relief  which  was  given  in  Hichens  v. 
254 


FOX  V.  MACKRETU.  *  103 

Congreve,  (4  Kuss.  502,  577),  Bank  of  London  v.  Tyrrell  (10  Ho. 
Lo.  C.  26),  and  in  other  cases  too  numerous  to  mention."  See  also 
Morison  v.  Thompson,  9  L.  K.  Q.  B.  480;  Grout  Luxembourg  Rail- 
way Company  v.  Ma<piay,  25  Beav.  58G:  Chesterfield,  &c.,  Company 
V.  Blaek,  26  W.  II.  207. 

If  an  agent  employed  by  his  principal  to  obtain  another  to  do  work 
for  him,  for  instance,  as  a  subcontractor,  it  would  be  fraud  cognis- 
able in  equity  if  the  agent  entered  into  a  contract  at  a  preposterous 
price  in  order  that  he  and  the  sub  contractor  might  divide  the  pro- 
fits to  accrue  from  it.  See  Holden  v.  Webber,  20  Beav.  117, 120,  in 
which  case,  however,  under  peculiar  circumstances,  the  Court  refused 
to  grant  any  relief. 

So,  also,  if  an  agent  is  employed  to  obtain  a  lease,  he 
shall  not  take  *  it  for  his  own  benefit:   Taylor  v.  Salmon,  [  *  193  ] 
4  My.  &  Cr.  134. 

Nor  will  an  agent  employed  to  settle  a  debt  due  from  his  princi- 
pal be  permitted  to  derive  any  benefit  from  it  by  purchasing  it 
himself;  because  it  is  his  duty  on  behalf  of  his  employer,  to  settle 
the  debt  upon  the  best  terms  he  can  obtain;  and  if  he  is  enabled 
to  procure  a  settlement  of  the  debt  for  anything  less  than  the  whole 
amount,  it  would  be  a  violation  of  his  duty  to  his  employer,  or  at 
least  would  hold  out  a  temptation  to  violate  that  duty,  if  he  might 
take  an  assignment  of  the  debt  he  was  employed  to  settle,  and  so 
make  himself  a  creditor  of  his  employer  to  the  full  amount  of  the 
debt  which  he  was  employed  to  settle:  if,  therefore,  an  agent  ob- 
tained under  these  circumstances  an  assignment  of  a  debt  due  from 
his  principal,  he  would  be  held  a  trustee  for  his  principal,  and 
would  only  be  entitled  to  the  sum  he  actually  paid  for  the  debt: 
Reed  v.  Norris,  2  My.  &  Cr.  374. 

So  where  an  agent  employed  by  one  party  to  a  contract,  surrep- 
titiously enters  into  dealings  for  his  own  benefit  with  the  other 
party  which  conflict  with  the  performance  of  the  duties  he  haslin- 
dertaken  to  perform  for  his  own  principal,  such  dealings  will  be 
cognisable  as  a  fraud  by  the  Court  of  Equity.  See  Panama  and 
South  Pacific  Telegrapyh  Co.  v.  Lidia  Rubber,  Gidta  Percha,  and 
Telegraph  Works  Co.,  10  L.  R.  Ch.  App.  515;  2  Set.  Dec.  1360,4th 
ed.  There  the  defendants,  a  Telegraph  AVorks  Company,  agreed 
with  the  plaintifPs,  a  Telegraph  Cable  Company,  to  lay  a  cable,  the 
cable  to  be  paid  for  by  a  sum  on  the  order  being  given,  by  twelve 
instalments  upon  certificates  of  the  Cable  Company's  engineer  (Sir 
C.  T.  Bright),  that  the  manufacture  of  the  cables  was  making  suf- 
ficient progress  to  entitle  the  contractors  thereto,  another  sum  to  be 
payable  on  shipment,  and  the  remainder  on  the  cable's  being  com- 
pletely laid  and  certified  by  the  Cable  Comjiany's  engineers.  Soon 
afterwards  the  engineer,  who  had  contracted  to  lay  other  cables  for 
the  defendants,  agreed  with  them,  without  the  knowledge  of  the 
plaintiffs,  to  lay  this  cable  also  for  a  sum  of  money  to  be  paid  to 
him  by  instalments,  payable  by   the  Works  Company,  when  they 

255 


*  194  FOX  V.  MACKRETH. 

received  the  instalments  from  the  plaintifPs.  The  plaintiffs  paid 
the  Works  Company,  upon  the  order  for  the  cable  being  given, 
40,000/.,  and  to  Sir  C.  T.  Bright,  their  engineer,  GOO/.,  being 
his  commission  thereupon.  It  was  held  by  the  Lord  Justices, 
affirming  the  decision  of  Sir  R.  Malins,  V.-C,  that  the  agreement 
between  the  engineer  and  the  Works  Company  was  a  fraud,  which 
entitled  the  Cable  Company  to  have  their  contract  rescinded,  smd 
to  have  the  sums  of  40,000/.  and  GOO/,  repaid  to  them. 
[*194]  See  also  Etna  Insurance  *  Co.,  In  re  Oicens,  7  I.  R.  Eq. 
325,  424;  Pliosphate  Seivage  Company  v.  Hartinont,  5  Ch. 
D.  394. 

So,  also,  in  Massey  v.  Davies,  2  Ves.  317,  an  agent  for  a  colliery, 
who  it  was  stipulated  was  to  have  no  emolument  beyond  his  salary, 
was  decreed  to  account  for  the  profits  made  by  selling  to  his  princi- 
pal timber  belonging  to  himself  and  another  person,  with  whom  he 
had  clandestinely  entered  into  partnership,  under  the  name  of  that 
person.  In  this  case  the  partner  was  held  to  have  no  knowledge 
that  the  agent  was  acting  contrary  to  his  trust;  otherwise  he  would 
have  been  held  bound,  for  not  only  the  agent  acting  contrary  to  his 
trust,  but  a  man  who,  knowing  the  agent  to  be  guilty  of  a  breach 
of  trust,  entered  into  a  transaction  with  him,  will  be  answerable; 
and  see  TunibuU  v.  Garden,  38  L.  J.  (Ch.),  331,  334;  Kimber  v. 
Barber,  8  L.  R.  Ch.  App.  56;  Morison  v.  Thoinjjson,  9  L.  E.  Q.  t. 
480. 

Where  a  person  is  employed  as  a  stockbroker,  if  he  himself  pur- 
chase the  stock  of  his  employer,  or  sell  his  own  stock  to  him,  with- 
out his  knowledge,  such  sales  and  purchases  will  be  set  aside.  See 
Brookman  v.  Rothschild,  3  Sim.  153;  2  D.  &  C.  188;  5  Bligh.  N. 
S.  165,  nom.  Rothschild  v.  Brookman.  So  in  Gillet  v.  Pex)percorne, 
(3  Beav.  78),  the  plaintiff  employed  the  defendant,  a  stockbroker, 
to  purchase  some  canal  shares,  and  he  bought  them  from  a  person 
who,  though  ostensibly  owner,  was  a  mere  trustee  for  himself.  Lord 
Langdale,  M.  R.,  set  aside  the  sale  with  costs:  "It  is  said,"  ob- 
served his  Lordship,  "that  this  is  every  day's  practice  in  the  city. 
I  certainly  should  be  very  sorry  to  have  it  proved  to  me  that  such  a 
8(jrt  of  dealing  is  usual;  for  nothing  can  be  more  open  to  the  com- 
mission of  fraud  than  transactions  of  this  nature.  Where  a  man 
employs  another  as  his  agent,  it  is  on  the  faith  that  such  agent  will 
act  in  the  matter  purely  and  disinterestedly  for  the  benefit  of  his 
employer,  and  assuredly  not  with  the  notion  that  the  person  whoso 
assistance  is  required  as  agent  has  himself  in  the  very  transaction 
an  interest  directly  opposed  to  that  of  his  principal."  See  also 
The  Bank  of  Bengal  v.  Macleod,  7  Moore,  P.  C.  C.  35,  46;  Kimber 
V.  Barber,  8  L.  R.  Ch.  App.  56.     See  Sug.  Prop.  662. 

With  regard  to  the  remedy  which  a  principal  has  against  an  agent 

employed  to  purchase  property  for  him,  where  the  agent  sells  to 

the  principal  property  of  his  own  which  he  had  acquired  before  the 

agency  existed,  concealing  the  fact  that  it  is  his  own  property,  it  is 

256 


FOX  V.  MACKRETII.  *  195 

cloar  that  tho  principal  has  tho  ri;^ht,  upon  di'^f^ovoring  the  real  facts, 
to  rescind  tho  contract:  /nr(?  Cape  Breton  Compaiii/,  20  Ch.  D.  221; 
Rotlisdiild  V.  Brookman,  2  Dow,  <fe  C.  188.  [As  to  when  pro{)orty 
has  Ijeeu  acquired  or  disposed  of  in  violation  of  liduciary  relations, 
sec,  Fliuno  v.  Batjlev,  7  Federal  lieporter,  785;  Hawley  v.  Upton, 
102  U.  S  314;  Hatch  v.  Dana,  101  U.  S.  205;  Pullman  t'.  Upton, 
9()  U.  S.  328.] 

*  But  if  tho  principal  declines  to  rescind,  or  if  by  rea-  [  "^'  195  ] 
son  of  intermediate  dealings  with  tho  property  rescission 
has  become  impossible,  the  principal  is  not  entitled  to  call  on  the 
agent  to  account  for  tho  protit  which  he  has  made  by  the  sale,  i.  e.. 
either  the  difference  between  the  price  ho  himself  gave  for  tho 
property,  and  tho  price  which  ho  obtained  from  the  principal,  or  tho 
difference  between  the  latter  price  and  the  market  value  of  tho 
property  at  tho  time  of  the  sale  to  the  princi[)al:  In  re  Cape  Breton 
Companu,  26  Ch.  D.  221;  affirmed  on  appeal  by  Cotton  and  Fry, 
L.  J  J.,  dissentiente  Bowen,  L.  J.,  29  Ch.  D.  795;  McPherson  v. 
Watt,  3  App.  Cas.  254,  273;  In  re,  Ambrose  Lake  Tin  and  Copper 
Mining  Co.,  14  Ch.  D.  390,  398;  Erlanger  \.  Neio  Sombrero  Pkos 
phateCo.,  3  App.  Cas.  1218,  1235;  5  Ch.  D.  73,  91. 

A  different  view  of  the  law  appears  to  have  been  taken  on  the 
earlier  case  of  Waddell  v.  Blockey,  4  Q.  B.  D.  078,  which  does 
not  appear  to  have  been  cited  in  the  case  of  In  re  Cape  Breton  Co., 
and  from  which  it  "only  appears  to  be  distinguishable,  on  tho  ground 
that  the  agent  in  the  former  case  was  guilty  of  actual  fraud  in  in- 
ducing his  principal  to  believe  that  the  property  purchased  from 
him  belonged  to  another  person.  In  Waddell  v.  Blockey,  4  Q.  B. 
D.  678,  L.  ordered  the  defendant  to  buy  for  him  rupee  paper.  The 
defendant  sold  rupee  paper  of  his  own  to  L.  whilst  he  fi-audulontly 
led  L.  to  believe  that  it  belonged  to  third  persons.  Tho  value 
of  rupee  paper  afterwards  become  considerably  less,  but  L.  held  for 
many  months  what  the  defendant  had  sold  to  him,  and  ultimately 
resold  it  at  a  loss  of  43,000Z..  It  was  held  by  tho  Court  of  Appeal, 
reversing  the  decision  ot  Huddle ston,  B.,  that  tho  measure  of  dam- 
ages was  not  the  amount  of  the  loss  ultimately  sustained  by  L.,  viz. 
43,000/.,  but  the  difference  between  the  price  which  ho  would  have 
received  if  he  had  re-sold  it  in  the  market  immediately  after  pur 
chasing  it. 

Upon  the  same  principle,  where  one  of  several  partners  employed 
to  purchase  goods  for  the  firm,  and  he,  unknown  to  his  co-partners, 
purchased  goods  of  his  own  at  the  market  ])rice,  and  made  consider- 
able profit  thereby:  It  was  held  by  Sir  J.  Romilly,  M.  B.,  that  the 
transaction  could  not  be  sustained,  and  that  he  was  accountable  to 
the  firm  for  the  profit  thus  made:  Bentley  v.  Craveyi,  18  Beav.  75; 
Williams  v.  Trye,  lb.,  366,  371;  Perens  v.  Johnson,  3  Sm.  &Ct.  419; 
Burton  v.  Wookey,  6  Madd.  367.  So  in  Richie  v.  Couper,  28  Beav. 
344,  it  was  held  that  one  of  several  co-owners  of  a  ship,  who  acted 
as  ship's  husband,  was  only  entitled  to  charge  the  cost  price  of  sup- 

17   WHITE  ON   EQUITY.  257 


*  196  FOX  V.  MACKRETH. 

plies  to  the  ship  fiirnished  by  him   in  the  course  of  his  business. 
See  also  Beck  v.  Kantorowicz,  3  K.  &  J.  230. 

So  the  sale  to  a  solvent  partner,  even  on  an  execution  of 
[  *  19G  ]  *  the  share  of  an  insolvent  partner,  has  been  set  aside,  in 
the  case  of  a  coal  mine,  where  there  was  improper  conduct 
on  the  part  of  the  solvent  partner,  whereby  he  concealed  from  in 
tendino-  purchasers  that  a  seam  of  coal  was  nearly  reached:  Pcrens 
V.  Johnson,  3  Sm.  &  Giff.  419. 

A  partner  must  not  carry  on  the  business  of  the  partnership  in 
his  own  or  another  name  separate  from  it,  otherwise  than  for  the 
benefit  of  the  partnership.  See  Somerville  v.  Mackay,  IG  Ves.  382; 
Lock  V.  Lynam,  4  Ir.  Ch.  Rep.  188.  [As  to  third  persons,  a  partner 
can  bind  the  firm  by  simple  contracts  only  within  the  sphere  of  its 
operations  as  presented  to  the  public:  Thompson  v.  Toledo  Bank, 
111  U.S.  529;  Michols  v.  James,  130  Mass.  589;  Catlin  v.  Gilders, 
3  Ala.  536;  Frost  v.  Hanford,  1  E.  D.  Smith,  540;  Livingston  v. 
Roosevelt,  4  Johns.  251.]  Where  a  partner  so  acts,  the  option  of 
the  others  seems  to  be  to  say,  "  That  was  a  business  within  the  scope 
of  the  partnership,  and  although  you  did  it  secretly  or  in  connection 
with  some  other  person,  I  elect  to  take  the  profits  of  it,  because  it 
was  part  of  the  business  for  which  the  partnership  was  established, 
and  I  elect  to  say  that  what  you  have  been  doing  nominally  for 
yourself,  but  really  for  the  partnership,  was  for  the  benefit  of  the 
partnership: "  per  James,  L.  J.,  in  Dean  v.  M'Doii'ell,  8  Ch.  D.  351. 

So  again,  if  a  person  from  his  position  as  partner  gets  a  business 
which  is  profitable,  or  from  his  position  as  partner  gets  an  interest 
in  partnership  property,  or  in  that  which  the  partnership  requires 
for  the  purposes  of  the  partnership,  he  cannot  hold  it  for  himself, 
because  he  acquires  it  by  his  position  of  partner,  and  acquiring  it  by 
means  of  that  fiduciary  position,  he  must  bring  it  into  the  partner- 
ship account.  [Saving  Fund  Society  v.  Hagerstown  Saving  Fund 
Society,  12  Casey,  498;  Yeager  v.  Wallace,  7  P.  F.  Smith,  365.] 
The  first  part  of  this  proposition  may  be  illustrated  by  the  case  of 
Russell  V.  Austivick,  1  Sim.  52,  which  was  the  case  of  a  partnershp 
where  two  persons  having  pined  in  business  as  carriers  under  a 
contract  with  the  Mi«i  to  carry  bullion  between  London  and  Fal- 
mouth,  one  of  the  partners,  by  virtue  of  his  position  as  contractor, 
obtained  a  further  contract  in  his  own  name  for  carrying  silver  fcr 
the  Mint  by  another  route,  and  was  compelled  to  share  the  profits 
thereof.  See  also  Glassington  v.  Thivaites,  1  S.  &  S.  124, 133.  The 
other  part  of  the  proposition  may  be  illustrated  by  those  cases  where 
a  partner,  obtaining  behind  the  back  of  another  partner  a  renewal 
of  a  lease,  has  been  held  to  be  a  trustee  thereof  for  the  partnership. 
See  Alder  v.  Fouracre,  1  Swanst.  489;  Feathersfonhaugh  v.  Fenicick, 
17  Ves.  311;  and  cases  cited  in  the  notes  to  Keech  v.  Sandford,  ante, 
p.  58.  See  also  note  to  Waters  v.  Taylor,  L.  Cas.  Merc.  Law,  544, 
555,  556,  3rd  ed. 

So  in  Gardner  v.  M'Cutcheon,  4  Beav.  534,  where  two  persons, 

258 


FOX  V.  MACKKETU.  *  198 

being  part  owners  of  a  ship  which  was  oranloyed  in  trading  for  the 
common  beuHtit  of  th«^  part  owners,  and  one  of  those  part  owners, 
having  used  that  ship  for  the  purpose  of  a  private  trading 
of  his  own,  it  was  held  that  the  *  other  part  owner  was  en-  [  *  197  ] 
titled  to  follow  the  profits  thereby  made. 

AVhere,  however,  a  partner,  in  breach  of  contract,  derives  profits 
from  a  separate  trade  not  within  the  scope  of  the  partnership  busi- 
ness, and  which  profits  were  not  acquired  by  him  by  reason  of  his 
connection  with  the  firm  or  by  use  of  the  firm's  property,  the  co- 
partners, although  they  may  claim  damages,  are  not  entitled  to  an 
account  of  the  pi'ofits  made  in  such  separate  trade:  Dean  v.  JW- 
Dowell,  8  Ch.  D.  854. 

There  is  no  rule  which  pi*events  a  surviving  partner  from  pur- 
chasing the  share  of  a  deceased  partner  from  his  representatives 
(Chambers  v.  Hotcell,  11  Beav.  6,  14),  or  which  prevents  one  of 
several  residuary  legatees  from  buying  the  share  of  another,  or  pur- 
chasing for  less  than  the  amount  a  charge  on  the  share  of  another:- 
Bar  well  v.  Barivell,  84  Beav.  871. 

But  inasmuch  as  the  Court  of  Chancery  will  rarely  allow  persons 
conducting  a  sale  to  bid  at  it,  where  a  sale  is  directed  by  the  Court 
of  partnership  property  upon  a  dissolution  of  partnership,  liberty 
to  bid  at  the  sale  will  only  be  given  to  such  of  the  partners  as  have 
not  the  conduct  of  the  sale:   Wild  v.  Milne,  20  Beav.  506. 

Executors  or  administrators  will  not  be  permitted,  either  imme- 
diately or  by  means  of  a  trustee,  to  purchase  for  themselves  any 
part  of  the  assets,  but  will  be  considered  as  trustees  for  the  persons 
interested  in  the  estate,  and  must  account  to  the  utmost  extent  of 
the  advantage  made  by  them  of  the  subject  so  purchased:  Hall  v. 
Hallef,  1  Cox,  184;  Killick  v.  Flexney,  4  Bro.  C.  C.  IGl;  Watson 
V.  Toone,  6  Madd.  153;  Kilbee  v.  Sneyd,  2  Moll.  186;  Baker  v.  Car- 
ter,  1  Y.  &  C.  Exch.  Ca.  250;  Naylor  v.  Winch,  1  S.  &  S.  566; 
Cook  V.  Collingridge,  Jac.  607;  Wedderbiirn  v.  Wedderbur^i,  iMy. 
&  C.  R.  41;  Baker  v.  Bead,  18  Beav.  898;  Smedleij  v.  Varley,  22 
Beav.  358.     [Bailey  v.  Robinson,  1  Gratt,  4.] 

Execut(3rs,  moreover,  cannot  purchase  a  legacy  from  a  legatee, 
and  the  fact  that  the  legatee  was  also  a  co-executor  will  be  no  de- 
fence to  the  transaction:  In  re  BieVs  Estate,  16  L.  R.  Eq.  577. 
see  also  Luff  v.  Lord,  84  Beav.  220. 

So,  if  they  compound  debts  or  mortgages,  or  buy  them  in  for  less 
than  is  due  upon  them,  they  will  not  be  allowed  to  retain  any 
benefit  from  the  transaction  for  themselves,  but  for  the  estate.  See 
Anoyi.  Salk.  155;  Ex  parte  James,  8  Yes.  346;  Ex  x>arte  Lacey, 
6  Ves.  628;   Chute  v.  Lindesay,  6  I.  R.  Eq.  385,  cited. 

It  seems,  however,  that  an  executor  who  has  not  proved,  is  xinder 
no  disability  to  purchase  the  testator's  assets:  Clark  v.  Clark,  9 
App.  Ca.  733. 

Assignees  of  a  banki-upt  (now  called  trustees  for  the 
creditor)    *  cannot    in   any   case    purchase   his   property.  [  *  198  ] 

259' 


*  190  FOX  V.  MACKRETII. 

This  may  be  laid  down  as  a  general  rule,  which  will  be  more 
peculiarly  applied  with  unrelenting  jealousy,  from  the  impossi- 
bility of  reaching  the  transaction,  and,  moreover,  because  the  as 
signee  has  the  bankrupt  and  his  property  altogether  under  his 
own  disposal  (see  Ex  parte  Ckadivick,  cited  in  Montague  and  Ayr- 
ton's  book. on  Bankruptcy,  vol.  1,  329,  2ud  ed. ;  Ex  parte  Lacey,  6 
Ves.  023;  Ex  parte  Hughes,  6  Ves.  617;  Ex  x>arte  James,  8  Ves. 
337;  Ex  parte  Tanner;  Ex  parte  Attivood;  Oiven  v.  Foulkes,  6  Ves. 
430  n.;  Ex  x)cirte  Bage,  4  Madd.  459;  Ex  pjarte  Badcock,,  1  Mont. 
&  Mac.  231;  Turnery.  Trelawny,  12  Sim.  49;  Ex  parte  Thtcaites, 
1  M.  &  A.  323;  Ex  j^arte  Alexander  2  M.  &  A.  492);  nor  can  his 
partner  {Ex  x)CLvte  Biirnell,  7  Jur.  116);  nor  can  even,  it  seems,  a 
creditor  of  the  bankrupt  who  has  been  consulted  by  the  assignees 
as  to  the  terms  upon  which  the  property  should  be  put  up:  Ex 
parte  Hughes,  6  Ves.  617.  In  Welpdale  v.  Cookson,  1  Ves.  9;  5 
Ves.  682. 

Lord  Hardivicke  confirmed  a  sale  of  a  bankrupt's  estate  to  an  as- 
signee, in  case  the  majority  of  the  creditors  should  not  dissent; 
but  Lord  Eldon,  in  Ex  parte  Lacey,  6  Ves.  628,  doubted  the  au- 
thority of  that  case:  "If,"  said  his  Lordship,  "the  trustee  is  a 
trustee  for  all  the  creditors,  he  is  a  trustee  for  them  all  in  the  arti- 
cle of  selling  to  others;  and  if  the  jealousy  of  the  Court  arises 
from  the  difficulty  of  a  cestui  que  trust  duly  informing  himself 
which  is  most  or  least  for  his  advantage,  I  have  considerable  doubt 
whether  the  majority  in  that  article  can  bind  the  minority:"  Ex 
parte  Thwaites,  1  M.  &  A.  323.  But  in  a  subsequent  case,  on  pay- 
ment of  costs,  a  purchase  by  an  assignee,  on  being  found  beneficial 
by  the  Court,  was  confirmed  (Ex  parte  Gore,  6  Jur,  1118;  3  M.  D. 
&  De  G.  77;  7  Jur.  136).  An  assignee,  moreover,  has  been  re- 
moved by  the  Court  in  order  that  he  might  bid  at  a  sale  of  the 
bankrupt's  estate  (Ex  parte  Perks,  3  M.  D.  &  De  G.  385);  and  in 
a  case  where  the  Court  refused  to  allow  an  assignee  to  bid,  he  was 
allowed  to  name  the  price  he  would  give  if  the  property  were  not 
sold  by  auction,  and  afterwards  to  buy  at  that  price:  Ex  parte 
Holyman,  8  Jur.  156. 

As  to  the  purchase  of  debts  dxie  from  the  bankrupt  by  the  as- 
signee, it  has  been  decided  that,  as  assignees  cannot  buy  the  estate 
of  the  bankrupt,  so,  also,  they  cannot  for  their  own  benefit  buy  an 
interest  in  the  bankrupt's  estate,  because  they  are  trustees  for  the 
creditors.     In    that    respect   there    is    no   difference   between    as- 
signees and  executors,  who    cannot    for    their   own    benefit   buy 
the  debts  of  the  creditors;  for  although,  in  a  moral  point 
[  *  199  ]  of  view,  such  a  *  transaction  may  not  be  blamable,  still  the 
Court,  considering  that,  unless  the  policy  of  the  law  made 
it  impossible  for  them  to  do  anything  for  their  own  benefit,  it  was 
impossible  to  see  in  what  cases  the  transaction  was  morally  right, 
and   also  the  prodigious  power  of  the  assignees  connected  with 
solicitors  under  the  commission,  and  bankers  receiving  the  money, 
2G0 


FOX  V.  MACKRETIl.  *  200 

over  tho  creditors  and  the  bankrupt,  has  held  the  assignees  trustees 
of  the  debts  purchased  by  them  for  the  benefit  of  those  entitled  to 
the  interest  in  the  rosidiie,  tho  creditors  or  the  bankrupt,  as  the  case 
may  be:  Ex  j 'arte  Lacey,  G  Ves.  028.  And  see  Pooleij  v.  Qiiillcr, 
2  De  G.  &  Jo.  827,  reversing  the  decree  of  !Sir  li.  T.  Kindersley, 
Y.-C,  reported  4  Drew.  184;  and  see  Adams  v.  Sicorder,  2  De  G. 
Jo.  &  Sm.  44,  reversing  S.  C,  4  Gitf.  287. 

When  Courts  of  Bankruptcy  had  jurisdiction  over  trustees  of 
deeds  executed  in  conf<jrmity  with  section  192  of  tho  Bankrui)tcy 
Act,  1861  (24  &  25  Vict.  c.  134),  repealed  by  82  &  33  Vict.  c.  88,  the 
Court  of  Chancery,  although  its  jurisdiction  was  not  excluded  by 
the  former  Act,  refused  to  exercise  it,  except  where  the  Court  of 
Bankruptcy  was  unable  to  give  adequate  relief.  See  Stone  v. 
Thomas,  5  L.  Bep.  Ch.  App.  219;  there  a  creditor  filed  a  bill  in 
Chancery  against  the  trustees  of  a  creditor's  deed,  alleging  that  one 
of  the  trustees  had  purchased  some  of  the  property  at  an  under- 
value, and  praying  that  the  sale  might  be  set  aside;  it  was  held  by 
Lord  Hatherley,  L.  C,  that  as  there  was  nothing  in  the  case  which 
would  render  the  relief  in  Chancery  more  effectual  than  in  bank- 
ruptcv,  the  bill  must  be  dismissed.  See  also  Martin  v.  Powning,  4 
L.  E.'Ch.  App.  356. 

Solicitors  to  the  bankrviptcy  (Oiven  v.  Foulkes,  6  Ves.  630;  Ex 
parte  Lhucood,  cited  8  Ves.  343;  Ex  x>cirte  Toxai,  2  M.  &  A.  29) 
cannot  purchase. 

The  rule  affecting  assignees  of  bankrupts  applied  with  equal 
force  to  a  commissioner  of  bankrupts;  Ex  parte  Bennett,  10  Ves. 
381),  even  although  he  had  not  acted  {Ex  parte  Harrison,  1  Buck, 
17;  Ex  parte  Dambell,  Mont.  33,  cited  in  notes);  or  had  ceased  to 
act  in  the  prosecution  of  the  fiat:  Ex  parte  Baynton,  7  Jur.  244. 

A  solicitor  is  not  incapable  of  contracting  with  or  purchasing 
from  his  client;  but  inasmuch  as  the  parties  stand  in  a  relation 
which  gives,  or  may  give,  the  solicitor  an  advantage  over  the  client, 
the  onus  lies  on  the  solicitor  to  prove  that  the  transaction  was  fair; 
(Montesquieu  v.  Sandys,  IS  Ves.  302;  Ca7ie  v.  Lord  Allen,  2  Dow, 
289;  Champion  N.-  Rigby,  1  Euss.  &  M.  839;  Edivards  \.  Meyrick, 
2  Hare,  60;  Gibbs  v.  Daniel,  4  Gift'.  1;  Pisani  v.  Attorney  General 
for  Gibralter,  5  L.  R.  P.  C.  C.  516);  [Such  transactions  are  sub- 
ject to  close  scrutiny:  Henry  t\  Raiman,  1  Casey  354:]  and 
the  *  indorsement  (not  now  necessary)  or  acknowledge-  [  *  200  ] 
ment  in  the  deed  of  the  receipt  of  the  purchase  money 
has  been  held  not  sufficient  evidence  of  its  payment  by  the  solici- 
tor to  his  client;  Gresley  v.  Mousley,  3  De  G.  F.  &  Jo.  433. 

In  the  case  of  Gibson  v.  Jeyes,  9  Ves.  266,  where  Jeyes,  an  attor- 
ney, sold  an  annuity  to  his  client,  this  subject  was  much  considered 
by  Lord  EVlon:  "An  attorney,"  says  his  Lordship,  ''buying  from 
his  client,  can  never  support  it,  unless  he  can  prove  that  his  dili- 
gence to  do  the  best  for  the  vendor  ha«  been  as  great  as  if  he  was 
only  an  attorney  dealing  for  that   vendor  with   a  stranger.     That 

261 


*  201  FOX  V.  MACKRETH. 

mast  be  the  rule.  If  it  appears  that  in  that  bargain  he  has  got  an 
aiivantage  by  his  diligence  being  surprised,  putting  fraud  and  in- 
capacity out  of  the  question,  which  advantage,  with  due  diligence, 
he  would  have  prevented  another  person  from  getting,  a  contract 
under  such  circumstances  shall  not  stand.  The  principle  so  stated 
may  bear  hard  in  a  particular  case;  but  I  must  lay  down  a  general 
principle  that  will  apply  to  all  cases;  and  I  know  of  none  short  of 
that,  if  the  attorney  of  the  vendor  is  to  be  admitted  to  bargain  for 
his  own  interest,  where  it  his  duty  to  advise  the  vendor  against  him- 
self." And  in  another  part  of  his  judgment  his  Lordship  observes: 
"If  he  will  mix  with  the  character  of  attorney  that  of  vendor,  he 
shall,  if  the  propriety  of  the  contract  comes  in  question,  manifest 
that  he  has  given  his  client  all  that  reasonable  advice  against  him- 
self that  he  would  have  given  against  a  third  person.  It  is  asked, 
where  is  that  rule  to  be  found  ?  I  answer,  in  that  great  rule  of  the 
Coui't,  that  he  vvho  bargains  in  matter  of  advantage  with  a  person 
placing  confidence  in  him,  is  bound  to  show  that  a  reasonable  use 
has  been  made  of  that  confidence;  a  rule  applying  to  trustees,  at- 
torneys, or  any  one  else."  See  slso  Austin^.  Chambers,  6  C  &r. 
1.  37;  Trevelyan  v.  Charter,  9  Beav.  140;  iS.  C,  11  C.  &  F.  714; 
King  v.  Savery,  1  Sm.  &  G.  271;  S.  C,  nom.  Saveryw.  King,  5  H. 
L.  Cas.  627,  656,  665;  Bellamy  v.  Sabine,  2  Ph.  425;  Holman  v. 
Loynes,  4  De  G.  Mac.  &  G.  270;  Salmon  v.  Cutis,  Cults  v.  Salmon, 
4  De  G.  &  Sm.  125;  Barnard  v.  Hunter,  2  Jur.  N.  S._1213;  Waters 
V.  Thorn,  22  Beav.  547;  Spencer  v.  Tojylumi,  lb.  5(3;  Denton  \. 
Donner,  23  Beav.  285;  Pearson  v.  Neivson,  28  Beav.  598;  Pojjham 
v.  Exham,  10  Ir.  Ch.  Rep.  440;  Ch^esley  v.  Mousley,  1  Giff  450;  4 
De  G.  &  Jo.  78;  3  De  G.  F.  &.  Jo.  433  ;  Bealev.  Billing,  13  Ir.  Ch. 
Rep.  250.  [Mott  v.  Harrington,  12  Vt.  199  Trotter  v.  Smith,  59, 
111,  240,  Miles  t'.  Erwin,  1  M'Cord,  Ch.  524;  Mahantv  Smith,  6 
Heisk,  167;  Smith  v.  Brotherljne,  12  P.  F.  Smith,  461. J 

In  Montesquieu  v.  Sandys,  18  Ves.  302,  the  purchase  of  a  rever- 
sionary interest,  viz.  a  second  presentation  to  a  living,  ■  after  the 
death  of  the  then  incumbent,  by  an  attorney,  from  his  client,  though 
advantageous  in  the  end,  was  sustained,  no  fraud  or  mis- 
[  *  201  ]  representation  being  proved,  and  *  the  proposal  coming 
from  the  client,  both  the  attorney  and  client  being  igno- 
rant of  the  real  value.  See  Hesse  v.  Briant,  6  De  G.  Mac.  &  G. 
623;  2  Jur.  N.  S.  922. 

A  solicitor,  if  a  purchase  from  his  client  be  a  fair  transaction, 
may  file  a  bill  for  specific  performance  [Cane  v.  Lord  Allen,  2  Dow, 
289).  And  if  a  solicitor  purchasing  from  his  client  institute  a 
suit  against  third  parties  to  enforce  his  right,  the  objection  to  the 
transaction  on  the  ground  of  its  being  a  purchase  by  a  solicitor 
from  his  client,  cannot  be  maintained  by  such  third  parties;  Knight 
V.  Bovryer,  23  Beav.  609. 

It  is  always  advisable  that  a  solicitor,  purchasing  from  his  client, 
should  insist  upon  the  intervention  of  another  professional  man  to 
262 


FOX  V.  MACKRETII.  *  202 

act  on  behalf  of  Lis  cliout:     Pisani  v.  Attorney -General  for  Gib- 
raltar, b  lu.  JX.  F.  C.C.  blQ. 

But  the  rulo  laid  down  by  Lord  Eldon  will  not  apply,  if  tho  soli- 
citor does  not  act  in  such  capacity  in  hac  re  {Cane  v.  Lord  Al- 
len, 2  Dow.  289;  Edicards  v.  Meyrick,  2  Hare,  (38;  hut  see  Edwards 
V.  Willidms,  11  W.  R.  (L.  J.;,  501),  unless  it  appears  that  ho  in 
aware,  or  takes  advantage,  of  a  neglect  of  duty  on  the  part  of  the 
now  solicitor,  or  he  withholds  or  suppresses  any  information  of  im- 
portance acquired  when  he  acted  as  solicilor:  Gibbs  \.  Daniel,  •i 
Giff.  1. 

For  though  a  person  may  have  ceased  to  act  as  attorney  for 
another,  if  by  means  of  former  transactions,  while  holding  that 
character,  he  had  acquired,  at  the  expense  of  his  client,  a  know- 
ledge of  the  value  of  his  property  which  tho  client  had  not,  he  will 
not  be  able  to  sustain  any  contract  relative  to  such  property,  if  ho 
concealed  from  his  former  client  the  knowledge  so  obtained:  Cane 
V.  Lord  Allen,  2  Dow,  294;  Montesquieu  v.  Sandys,  18  Yes.  308; 
Ex  parte  James,  8  Ves.  352.  If,  however,  such  knowledge  were 
commiiuicated  to  tho  former  client  by  the  attorney,  the  parties  would 
bo  placed  upon  an  equality,  and  such  comqaunication  being  proved 
the  ditficulty,  quoad  hoc,  would  be  removed:  Edivards  v.  Meyrick, 
2  Hare.  (59. 

Although  a  beneficial  purchase  by  a  solicitor  from  his  client 
pending  that  relation  cannot  be  supported,  the  solicitor  may  insist  on 
and  obtain  a  mortgage  fi'om  his  client  for  what  is  justly  due  to  him: 
Johnson  v.  Fesenmeyer,  25  Beav.  88;  3  De  G.  &  Jo.  13;  Pearson  y. 
Neicson,  28  Beav.  59S. 

A  solicitor  purchasing  from  his  client  will  not  be  allowed  to  de- 
rive any  benefit,  by  reason  of  his  having  drawn  up  a  conveyance  im- 
properly in  his  own  favour.  See  Greenfield  v.  Bates,  5  Ir.  Ch.  Rep. 
219.  There  a  solicitor  purchased  a  leasehold  interest  from  his 
client,  and  himself  prepared  the  assignment,  which  con- 
tained *no  covenant  to  indemnify  the  vendor,  but  did  con-  [  *  202  ] 
tain  tho  words,  "subject  to  rent  and  covenants,"  in  the 
lease.  It  was  held  by  Lord  Chancellor  Brady  that  the  executor  of 
tho  solicitor  was  bound  to  indemnify  the  vendor  against  the  rent 
and  covenants. 

Where,  moreover',  a  defendant  is  a  member  of  a  firm  of  solicitors 
acting  for  the  plaintiff  in  obtaining  an  order  for  a  receiver,  the  firm 
cannot,  by  any  default  or  delay  of  theirs  in  procuring  the  receiver's 
security,  enable  the  defendant  to  obtain  possession  of  money  Avhich 
ought  to  have  gone  into  the  hands  of  the  receiver  and  thus  enable 
the  defendant  to  exercise  a  right  of  retainer  thereon:  In  re  Birt, 
Birt  V.  Burt,  22  Ch.  D.  ()04;  Wickens  v.  Townshend,  1  Kuss.  &I\Iy.  301. 

Nor  will  a  solicitor  or  a  clerk  acting  in  such  capacity,  bo  allowed 
to  derive  any  benefit  by  reason  of  any  information  acquired  during 
the  course  of  his  employment  which  it  was  his  duty  to  have 
communicated  to  his  employer.     See  Hobday  v.  Peters,  28  Beav. 

263 


*203  FCX  y    MACKRETH. 

349.  There  a  mortgagor  consulted  a  solicitor,  who  turned  her  over 
to  his  clerk  to  assist  her  gratuitiously.  The  clerk  by  reason  of  in- 
formation derived  during  such  employment,  bought  up  the  mort- 
gage for  less  than  half  the  amount.  It  was  held  by  Sir  John 
Ro)>iilly,  M.  R.,  that  he  was  a  trustee  of  the  benefit  for  the  mort- 
gagoi'. 

A  solicitor  employed  in  making  a  purchase  is  accountable  to  his 
clients  for  the  benefits  which  he  may  have  derived  clandestinely 
from  a  sale  to  them  of  his  own  property.  See  Tlie  Bank  of  Lon- 
don V.  Tyrrell,  27  Beav.  273.  There  a  solicitor  was  active  in  found- 
ino"  a  banking  company.  Before  its  establishment  he  entered  into  a 
secret  arrangement  with  a  stranger,  that  the.  latter  should  purchase 
some  property  eligible  for  the  banking-house  on  a  joint  speculation. 
After  its  establishment  the  company  purchased  part  of  the  premises 
for  their  banking-house,  not  knowing  that  their  solicitor  was  inter- 
ested in  it.  It  was  held  by  Sir  John  Romilly,  M.  R.,  whose  deci- 
sion was  affirmed  by  the  House  of  Lords  (10  Ho.  Lo.  Ca.  26,  nom. 
Tyrrell  v.  The  Bank  of  London),  that  the  solicitor  ought  to  account 
to  the  company  for  all  the  profit  made  by  him  in  the  transaction, 
but  that  the  stranger  was  under  no  such  liability.  See  also  Chajylin 
V.  Young,  33  Beav.  414. 

A  solicitor  having,  under  a  decree,  the  conduct  of  sale,  is  under 
an  absolute  incapacity  to  purchase  at  it:  Sidney  \.  Ranger,  12  Sim. 
IV^;  Atkins  v.  Delmegc,  V2  Ir.  Eq.  Rep.  1.  And  see  In  re  Ronayne's 
Estate,  13  Ir.  Ch.  Rep.  444 

And  the  better  opinion  seems  to  be  that,  although  a  solicitor  may 
not  under  a  decree  actually  have  the  conduct  of  the  sale, 
[  *  203  ]  if  he  has  *  intervened  on  behalf  of  parties  interested  in 
the  sale  so  as  to  render  it  his  duty  toward  them  to  assist 
in  procuring  the  best  price  for  the  property  offered  for  sale,  he 
ought  not  to  be  allowed  to  purchase  it  for  himself.  See  Gtiest  v. 
Smythe,h  L.  R.  Ch.  App.  553,  554  n.  a  decision  of  Lord  Romilly^s, 
reversed,  it  is  submitted  erroneously  and  contrary  to  principle,  by 
Lord  Justice  Gifford,  sitting  alone,  see  S.  C,  5  L.  R.  Ch.  App.  551; 
see  also(?rofer  v.  Hugell,  3  Russ.  428;  ReBloye's  Trusts,  1  Mac.  & 
G.  488;  Greenlaio  v.  King,  3  Beav.  49. 

And  a  solicitor  who  has  purchased  secureties  given  by  his  client 
for  smaller  sums  than  the  amoiints  secured,  will  not  be  allowed  to 
hold  the  purchased  secureties  as  a  security  to  himself  for  a  larger 
sum  than  the  amount  which  he  had  expended  in  making  the  pur- 
chase, even  although  he  had  inserted  a  clause  in  a  deed  executed  by 
his  client,  that  he  was  to  be  entitled  to  claim  the  full  amount  due  on 
the  secureties  (Macleo'd  v.  Jones.24Ch.  T>.  289 ) ;  but  as  the  Court  has 
a  discretion  with  regard  to  the  allowance  of  interest  in  such  cases 
(In  re  Unsicortli's  Trusts,  2  Er.  &  Sm.  337;  Douglass  \.  Culvericell, 
4  D.  F.  &  J.  20;  Carter  v.  Palmer,  8  C.  &  F.  657),  the  solicitor 
may  be  allowed  5  per  cent,  on  the  sum  he  had  expended  in  making 
the  purchases:  Macleod  v.  Jones,  W.  N.,  1884,  1  March,  p.  53. 
264 


FOX  V.  MACKKETII.  *  204 

Although  as  an  ordinary  rulo  the  Court  will  not  grant  an  inter- 
locutory injuuction  restraining  -a  mortgagee  from  exercising  his 
power  of  sale,  except  u[)on  the  terms  of  the  mortgagor  i)aying  into 
Court  the  sum  sworn  Ijy  the  mortgagee  to  be  due  for  principal,  in- 
terest, and  costs,  such  rule  will  not  a[)ply  to  a  case  where  the  mort- 
gagee at  the  time  of  taking  the  mortgages  was  the  solicitor  of  the 
mortgagor,  for  in  such  a  ca^e  the  Court  will  look  to  all  the  circum- 
stances of  the  case,  and  will  make  such  order  as  will  save  the  mort- 
gagor from  oppression,  without  injuring  the  security  of  the  mort- 
gagee: Macleod  v.  Jones,  24  Ch.  D.  289. 

The  employment  of  counsel  as  confidential  legal  adviser  disables 
him  from  jjurchasing  for  his  own  benefit  charges  on  his  client's 
estates  without  his  permission;  and  although  the  confidential  em- 
ployment ceases,  the  disability  continues  as  long  as  the  reasons  on 
which  it  is  founded  continue  to  operate.  See  Carter  v.  Palmer,  1 
Dru.  &  Walsh,  722;  8  C.  &  F.  657;  2  De  G.  &  J.  421. 

A  person  chosen  as  arbitrator  cannot  buy  up  the  unascertained 
claims  of  any  of  the  parties  to  the  reference;  for,  to  use  the  words 
of  Lord  Manners,  "that  he  should  purchase  an  interest  in  those 
rights  upon  which  he  was  to  adjudicate,  could  not  be  endured.  It 
would  indeed  be  to  corrupt  the  fountain  and  contaminate 
the  *  award:"  Blennerhassett  v.  Day,  2  Ball.   &  B.   116.  [  *  204  ] 

Upon  the  same  principle,  a  judgment  delivered  by  a 
judge,  who  has  an  interest  in  the  subject-matter  of  the  suit,  will  be 
set  aside.  See  Dimes  v.  Proiwietors  of  the  Grand  Junction  Canal 
(8  H.  L.  Cas.  759).  There  it  was  held  that  a  judgment  of  Lord 
Cottenham,  C,  assisted  by  Lord  Langdale,  M.  K.,  (2  Mac.  &  G. 
285),  in  which,  affirming  the  decision  of  the  'Court  below,  he  had 
decided  in  favour  of  a  company  in  which  he  was  a  shareholder  to 
the  amount  of  several  thousand  pounds,  ought  to  be  reversed.  "  No 
one,"  said  Lord  Campbell,  "can  suppose  that  Lord  Cottenham  covld 
be  in  the  remotest  degree  influenced  by  the  interest  he  had  in  this 
concern ;  but  it  is  of  the  last  importance  that  the  maxim  that  no 
man  is  to  be  a  judge  in  his  own  cause  should  be  held  sacred.  .  .  . 
This  will  be  a  lesson  to  all  inferior  tribunals  to  take  care  not  only 
that  in  their  decrees  they  are  not  influenced  by  their  personal  inter- 
est, but  to  avoid  the  appearance  of  laboring  under  such  an  influ- 
ence." 

So,  where  an  Act  of  Parliament  empowered  a  rector,  with  the  con- 
sent of  the  bishop,  who  was  patron  of  the  living,  to  raise  money  by 
annuity  for  building  a  new  rectory-house,  the  plan  and  accounts  of 
which  were  to  be  approved  of  by  the  bishop.  The  bishop  advanced 
the  necessary  money,  and  obtained  a  grant  of  the  annuity  charged 
on  the  living.  The  bishop  being  placed  in  the  position  of  a  trustee 
to  protect  the  interests  of  the  rectory,  it  was  held,  by  Lord  Lang- 
dale,  M.R.,  that  he  could  not  become  the  purchaser  of  the  annuity; 
and  that  the  transaction,  although  there  was  no  unfairness  in  it, 
could  not  stand,  because  it  was  a  clear  violation  of  those  niles  which 

265 


*  205    ■  '      FOX  V.  MACKRETH. 

have  been  established  for  the  defence  of  those  whose  interests  and 
property  have  been  committed  to  the  protection  of  persors  placed 
in  a  fiduciary  situation:  Greenlaw  v.  King.  3  Beav.  49.  See  also 
Grocer  v.  Hugell,  8  Russ.  428.  But  see  Buyd  v.  Barker,  4  Drew. 
582. 

It  may,  however,  be  laid  down  as  a  general  rule  that  a  tenant  for 
life  may  purchase  or  take  in  exchange  lands  from  trustees,  in  wLom 
they  are  vested  with  a  power  of  sale  and  exchange,  wittt  his  consent 
and  direction  {Howard  v.  Vucane,  1  T.  &  R.  81),  but  this  case  has 
been  put  entirely  upon  the  practice  of  conveyancers  (  Grover  v.  Hu- 
gell, 3  Russ.432) ;  though  probably  it  might  be  better  rested  upon  the 
principle  that  as  the  trustees  were  the  vendors,  their  intervention, 
to  check  and  control  the  transaction,  was  quite  sufficient  to  take  the 
case  out  of  the  operation  of  the  rule  preventing  a  person  in  a  fidu- 
ciary position  from  purchasing  from  himself.     See  Beaden  v.  Kina, 

9  Hare  499. 
[  *  205  ]  *  In  a  recent  case  Lord  Justice  James  says,  that  "  the 
ground  of  the  rule  is,  that  the  power  of  consenting  to  or 
requesting  an  exercise  of  a  power  of  sale  is  given  to  the  tenant  for 
life  for  his  own  benefit,  and  that  he  is  not  in  a  fiduciary  position  as 
to  it.  He  has,  therefore,  the  same  right  to  buy  from  the  trustees 
that  any  one  else  has:"  Dicconson  v.  Talbot,  6  L.  R.  Ch.  App.  32, 
37. 

A  tenant  for  life,  with  power  to  lease,  might  at  law  grant  a  lease 
to  a  trustee  for  himself  (Wilson  v.  Sewell,  4  Burr.  975;  Taylor  v. 
Horde,l  Burr.  124;  Lord  Cardigan  v.  Montague,  2  Sugd.  Pow  ,  7th 
ed.,  App.,  p.  551);  so  likewise  where,  under  a  mortgage,  power  was 
reserved  to  the  mortgagor  until  entry  by  the  mortgagee  to  grant 
building  leases,  it  was  held  by  Sir  W.  Page  Wood,  V.-C,  that  a  lease 
to  a  trustee  for  the  mortgagor  was  good:  Sevan  v.  Habgood,  1  J.  & 
H.  222. 

A  power  of  sale  given  without  restriction  to  a  party  having  a 
limited  interest  only,  may  well  be  held  to  import  a  negative  upon 
the  power  of  the  same  party  to  buy,  for  the  power  to  sell  is  in  the 
nature  of  a  trust;  but  as  the  rule  does  not  extend  to  prevent,  in  all 
cases,  a  partybaving  a  power  to  sell  from  becoming  a  pm-chaser;  so 
neither,  where  there  is  a  restriction  upon  the  power  of  sale,  is  the 
party  having  the  power  to  sell  in  all  cases  at  liberty  to  become  the  pur- 
chaser. It  must,  in  each  case,  depend  upon  the  circumstances  under 
which,  and  the  purposes  for  which,  the  power  was  given,  and  upon 
the  nature  and  extent  of  the  restrictions  which  are  put  upon  the 
exercise  of  the  power.  In  the  proportion  in  which  the  power  is  re- 
stricted, the  danger  incident  to  allowing  the  donee  to  purchase  is 
diminished:  per  Sir  G.  Turner,  V.-C,  in  Beaden  v.  Kivg,  9  Hare, 
519. 

In  the  absence  of  any  indication  of  intention  by  the  settlor  or  tes- 
tator, which  must  be  attended  to  (In  re  Tempest,  1  L.  R.  Ch.  App, 
485),  there  is  no  impropriety  or  conflict  of  interest,  as  regards  the 

266 


FOX  V.  MACKRETII.  *  206 

time  for  sale  or  the  necessity  for  a  sale,  between  the  position  of  ten- 
ant for  life  and  the  position  of  other  parties  claiming  nnder  a  set- 
tlement or  will.  Hence,  when  a  tenant  for  life  under  a  will  was  ap- 
pointed one  of  the  trustees,  and  as  surviving  trustee  sold  the  prop 
erty,  it  was  held  by  Sir  Ocoxje  Jessel,  M.K  ,  that  ho  could  make  a 
good  title  to  ihe  property  which  the  Court  would  enforce  upon  a  pur 
chaser:  Forsier  v.  Abraham,  17  L.  E.  Eq.  851. 

A  creditor  taking  out  execution  is  not  precluded  from  becoming 
the  ))urchaser  of  the  property  seized  under  it.  "  The  case  of  trus- 
tees," observed  Sir  Thomas  Plumer,  M.ll.,  "is  (piite different;  with 
respect  to  themj  the  principle  is,  that  the  sami^  person  shall 
not  be  buyer  and  seller;  but  here  the  *  sherifi"  is  the  seller:"  [  *  200  ] 
Stratford  v.  Tinjnam,  Jac.  421. 

IMoreover,  it  has  been  held  that  a  mere  creditor,  having  his  debt 
secured  by  an  agreement  from  the  debtor  to  convey  an  estate  upon 
trust  for  the  creditor  to  sell,  and  amongst  others  to  pay  his  own  debt, 
is  not  in  such  a  fiduciary  position  as  to  be  disabled  from  piu'chasing 
the  estate  from  the  agent  of  his  debtor:  Chambers  v  Waters,  3  Sim. 
42;  Coop.  Ca.  t.  Brougham,  91;  *S.  C,  nom.  Waters  v.  Groom,  11  C. 
&  F.  684. 

With  regard  to  transactions  between  guardian  and  ward.  Lord 
Hardwicke  observed,  in  Oldin  v.  Samborn,  2  Atk.  15,  that  it  was 
improper  for  a  guardian  to  purchase  his  ward's  estate  immediately 
upon  his  coming  of  age.  But  although  it  had  a  suspicious  look,  yet 
if  he  were  paid  the  full  consideration,  it  was  not  voluntary,  and 
could  not  be  set  aside.  See  Hylton  v.  Hylton,  2  Ves.  549.  In  Carey 
v.  Carey,  2  S.  &  L.  173,  [The  presumption  of  undue  influence  is  of 
the  highest  degree  in  the  case  of  guardian  and  ward:  Cowee  v. 
Cornell,  75  N.  Y.  99;  Farmer  r.  Farmer,  39  N.  J.  Eq.  211,]  lease- 
holds belonging  to  an  infant  were  sold  under  a  decree  of  the  Court, 
and  purchased  by  his  guardian  in  the  suit,  who  acted  also  as  re- 
ceiver. The  sale  was  set  aside,  although  the  full  value  was  given, 
and  decreed  fraudulent  and  void,  it  being  wholly  unnecessary,  as 
there  were  funds  sufticient  for  the  purposes  to  which  the  purchase- 
money  was  to  be  applied;  and  the  old  lease  having  been  surrendered, 
and  a  new  one  obtained,  it  was  declared  to  be  held  in  trust  for  the 
persons  entitled  to  the  former  lease.  See  also  Dauson  v.  Massey,  2 
Ball  &  B.  219.  And  Lord  St.  Leonards  says,  with  reference  to  Lord 
Hardivicke^s  observation  in  Oldin  v.  Samborn,  that  "  it  seems  clear 
that  such  a  purchase  would  now  be  set  aside  on  general  principles, 
withoiit  reference  to  the  adequacy  of  consideration:"  Sugd.  V.  & 
P.  092,  14th  ed. 

In  a  recent  case,  a  young  lady,  two  3'ears  after  she  came  of  age, 
granted  a  mining  lease  as  to  part  of  the  property  in  possession,  and 
as  to  the  rest  in'  reversion,  to  her  brother-in-law  and  uncle,  at  the 
suggestion  and  advice  of  her  father's  executor,  and  with  no  inde- 
pendent advice.  Three  months  afterwards  the  executor  Avas  taken 
into  partnership  with  the  lessees.     It  appeared  that  applications  of 

267 


*  207  FOX  V.  MACKRETH. 

other  persons  to  become  lessees  had  been  discountenanced,  and  con- 
cealed from  the  knowledge  of  the  lady.  It  was  held  by  Sir  John 
Romilhj,  M.R.,  that,  in  order  to  support  the  lease  in  equity,  the  les- 
sees were  bound  to  show  that  no  better  terms  could  have  been  ob- 
tained; that  the  grantor  had  the  fullest  information  on  the  subject; 
that  she  had  separate,  independent,  and  disinterested  advice;  and 
that  she  had  deliberately  and  intentionally  made  the  grant;  and,  the 
lessees  having  failed  in  proving  this,  the  lease  was  cancelled: — 
Grosvenor  v.  Sherratt,  28  Beav.  659;  MulhalUn  \.  31  arum, 
[  *207  J  *  3  Dru.  &  W.  317;  Archer  v.  Hudson,  7  Beav.  560.  [See 
Blackmore  v.  Shelby,  8  Humph.  439;  Bostwick  v.  Atkins, 
8  Oomstock,  53.]     See  also  Loiu  v.  Holmes,  8  Ir.  Ch.  Rep.  53. 

If  a  auardian  buys  up  incumbrances  upon  his  ward's  estate  at  an 
undervalue,  he  will  be  held  a  trustee  for  his  ward,  and  can  only 

charge  him  with  what  he  has  actually  paid:  Henley  v.  ,  2  Ch. 

Ca.  245. 

The  principle  of  these  cases  has  been  acted  upon  by  the  Legis- 
lature, which,  under  the  General  Inclosure  Act  (41  Geo.  3,  c.  109, 
s.  2),  has  rendered  commissioners  incapable  of  purchasing  any 
estate  in  the  parish  in  which  an  inclosure  is  made  until  five  years 
after  the  date  and  execution  of  the  award.  And  under  the  Com- 
mons Inclosure  Act  (8  &  9  Vict.  c.  118,  s.  219),  a  similar  prohibi- 
tion prevents  valuers  from  purchasing  land' until  after  seven  years 
from  the  confirmation  of  the  award. 

Where  trustees  for  sale  in  proceedings  under  sections  8  and  9  of 
the  Lands  Clauses  Act,  1845,  appoint  one  of  themselves  as  surveyor 
for  the  purposes  of  valuation,  the  sale  will  be  invalid,  inasmuch  as 
the  valuers  are  placed  in  that  position  for  the  purpose  of  being  a 
check  on  the  persons  to  whom  the  power  is  intrusted,  and  it  would 
be  contrary  to  any  principle  of  right  that  one  of  those  persons 
should  exercise  the  power  by  himself  :  Peters  v.  Leives  and  East 
Grinstead  Raihvay  Co.,  18  Ch.  D.  429. 

Although  there  be  no  particular  relation  between  the  parties  such 
as  that  of  trustee  and  cestui  que  trust,  principal  and  agent,  solicitor 
and  client,  if  there  exist  a  confidence  between  them,  of  such  a  char- 
acter as  enables  the  person  in  whom  confidence  or  trust  is  reposed  to 
exert  influence  over  the  person  trusting  him,  the  Court  will  not  allow 
any  transaction  between  the  parties  to  stand  unless  there  have  been 
the  fullest  and  fairest  explanation  and  communication  of  every  par- 
ticular resting  in  the  breast  of  the  one  who  seeks  to  establish  a  con- 
tract with  the  person  so  trusting  him.  See  Tate  v.  Williamson,  2 
L.  Pt.  Ch.  App.  55;  2  Set.  Dec.  1353, 1354,  4th  ed.  There  Tate,  a 
young  man  aged  twenty-three,  entitled  to  a  moiety  of  a  freehold 
estate,  the  entirety  of  which  brought  in  about  440L  a  year,  being 
pressed  for  payment  of  his  college  debts,  amounting  to  about  lOOOZ., 
and  being  estranged  from  his  father,  wrote  to  his  great  uncle  for 
advice  and  assistance  as  to  the  payment  of  the  debts.  The  uncle  de- 
puted the  defendant,  his  nephew,  to  see  Tate  on  the  subject.  The 
268 


FOX  V.  MACKRETH.  *  208 

defendant  met  Tato,  by  appointment,  and  at  this  interview  Tatn  re- 
fused to  allow  any  attempt  to  compromise  the  dol)ts,  and  said  he 
would  sell  his  moiety  of  the  estate,  npon  which  the  defendant 
oiVered  him  7000/.  for  it,  payable  by  instalments.  Tate,  next  day, 
accepted  the  offer.  Before  an  ac^reement  had  l)een  signed, 
the  defendant  obtained  a  *  valuation  by  a  surveyor,  osli-  [  *  208  J 
mating  the  value  of  the  minesunder  the  entirety  at  20,000/. 
The  sale  was  completed  without  this  valuation  having  ever  l)een 
communicated  to  Tate.  Tate's  heir  filed  a  bill  to  imjieach  the  sale, 
and  it  was  held  by  Lord  Chelmsford,  C,  affirming  the  decision  of 
Sir  W.  Page  Wood,  V.-C.  (reported  1  Law  Rep.  Eq.  528),  that  the 
defendant  had  stood  in  a  fiduciary  relation  to  Tate,  that  made  it 
his  duty  to  communicate  to  him  all  material  information  which  he 
acquired  att'ecting  the  value  of  the  property,  and  that  as  he  bad 
not  communicated  the  valuation  to  Tate,  the  transaction  must  be 
set  aside.  See  also  Hobday  v.  Peters,  28  Beav.  349.  [A  ward  may 
make  a  gift  to  his  guardian  if  it  has  been  made  upon  a  fair  and 
well  informed  consideration,  but  as  a  general  rule  it  will  not  be 
allowed  to  stand,  although  there  may  be  no  evidence  of  actual  un- 
fairness: Sames  r.  Skinner,  16  Mass.  348;  Garvin  v.  AVilliams,  50 
Mo.  206;  Richardson  r.  Linney,  B.  Mon.  571;  Andrews  v.  Jones, 
10  Ala.  400.] 

There  is  not  much  anthority  upon  the  question,  how  far  relatives 
of  a  trustee  can  deal  with  him  in  respect  of  the  trust  property.  In 
Ferraby  v.  Hobson,  2  Ph.  255,  261,  a  lease  to  a  sister  of  one  of  two 
trustees  was  held  good,  where  the  facts  which  appeared  in  evidence 
completely  removed  all  suspicion.  Lord  Cottenham,  however,  in 
his  judgment,  said,  "that  trustees  expose  themselves  to  great  peril 
in  allowing  their  own  relatives  to  intervene  in  any  matter  connected 
with  the  execution  of  the  trust;  for  the  suspicion  which  that  cir- 
cumstance is  calculated  to  excite,  where  there  is  any  other  fact  to 
confirm  it,  is  one  which  it  would  require  a  very  strong  case  to  re- 
move." See  Coles  v.  Trecothick,  9  Ves.  234.  Ex  parte  Skinner, 
2  Mer.  453,  457. 

Where  no  fiduciary  relation  exists  between  the  parties,  in  the  ab- 
sence of  fraud,  mere  inadequency  of  consideration,  although  the 
vendor  may  have  no  professional  adviser,  will  not  be  a  sufficient 
reason  for  setting  aside  a  sale  (Harrison  v.  Guest,  6  De  G.  M.  &  G. 
424;  8  Ho.  Lo.  Ca.  481);  but  inadequacy  of  price,  the  want  of  due 
protection  and  advice,  precipitation  in  concluding  and  carrying  out 
the  bargain,  especially  when  the  vendor  is  poor  and  illiterate,  may 
be  held  to  be  sufficient  evidence  of  fraud  on  the  jiart  of  the  pur- 
chaser, so, as  to  enable  the  vendor  or  his  heiT  to  set  aside  the  sale. 
Longmate  v  Ledger,  2  Giff.  157;  Clark  v.  Malpas,  31  Beav.  80;  4 
De  G.  i.  &  F.  401:'  Douglas  v.  C ulvericell,  10  W.  R.  (V.-C.  S.) 
189;  Baker  v.  Monk,  33  Beav.  419;  4  De  G.  J.  &  S.  388;  Frees  v. 
Coke,  6  L.  R.  Ch.  App.  645. 

Where  a  person  standing  in  a  fiduciary  position  purchases  at  a 

269 


*  209         .  FOX  V.  MACKRETH. 

sale,  which  takes  place  by  order  of  the  Court,  ah  hough  such  sale 
has  been  absolutely  contiruied,  the  Sale  of  Land  by  Auction  Act, 
1861  (30  «fc  31  Vict.  c.  48,  s.  i)  will  not  l)e  a  bar  to  its  being  set 
aside:  Guest  v.  Sinythe,  5  L  R.  Ch.  App.  551.  Delvesv.  Delves,  20 
L.  E.  Eq.  77;  and  where  such  person  has  by  the  suppression  of 
facts  obtained  the  approval  of  the  Court  to  a  sale,  it  will  be  set 
aside:  [A  purchase  at  a  foreclosure  sale  may  be  valid:  Adams  u. 
La  Rose,   75   Ind.   471   or   one  indirectly   through  a  third  party. 

Creveling  v.  Fritts,  34,  N.  J.  Eq.  134.]  Bosivellw  Coakes, 
[*209]  W.  N.  *Aug.  9,  1884,  reversing  on  difPerent  grounds,  S. 

a  23  Ch.  D.  302. 

Nature  of  Relief  granted  by  Courts  of  Equity.] — It  remains  to 
consider  the  nature  of  the  relief  a  Court  of  Equity  will  grant  against 
a  trustee  or  other  person  who  has  made  a  purchase  which  is  im- 
proper, according  to  the  rules  before  laid  down,  and  upon  what 
terms  that  relief  will  be  granted. 

Any  of  the  cestuis  que  trust  (under  which  term  are  comprehend- 
ed the  persons  entitled  to  the  property  before  the  sale,  or  their  rep- 
resentatives), if  they  wish  it,  can  insist  upon  a  reconveyance  of  the 
.  property  from  the  trustee  who  purchased,  if  it  remains  in  his  hands 
unsold.  (York  Buildings  Company  v.  Mackenzie,*^  Bro.  P.  C.  42, 
Toml.  ed. ;  Lord  Hardivicke  v.  Vernon,  4  Ves.  411;  Randall  v.  Er- 
ringfon,  10  Ves.  423;  Hamilton  v.  Wright,  9  C.  &  F.  123);  or  from  a 
person  who  has  purchased  from  him  with  notice:  Attorney -General 
V.  Lord  Dudley,  Coop.  146;  Dunbar  v.  Tredennick,  2  Ball.  &  B.  304; 
Pearson  v.  Benson,  28  Beav.  598.  [See  Hoffman  v.  Coal  Co.,  16 
Md.  456;  Bobbins  v.  Bates,  4  Cush.  104;  Lazaruss  Lessee  v-  Bryson, 
3  Binney,  54.] 

But  the  reconveyance  will  only  be  decreed  upon  the  terms  of 
their  repaying  the  purchase-money,  with  interest  at  4Z.  per  cent., 
and  all  sums  which  may  have  been  expended  in  repairs  and  im- 
yjrovements  of  a  permanent  and  lasting  nature,  and  also  such  as 
hate  a  tendency  to  bring  the  estate  to  a  better  sale.  On  the  other 
hand,  there  must  be  an  allowance  for  acts  that  deteriorate  the  value 
of  the  estate,  and  the  trustee  must  account  for  all  rents  received  by 
him,  and  for  all  profits,  such  as  money  arising  from  the  sale  of  tim- 
ber; and  he  must  also  pay  an  occupation  rent  for  such  part  of  the 
estate  as  may  have  been  in  his  actual  possession:  Hall  v.  Hallett,  1 
Cox,  134;  Ex  parte  Hughes,  6  Ves.  624,  625;  Campbell  v.  Walker,  5 
Ves.  682;  Ex  parte  Bennett,  10  Ves.  400,  401 ;  Robinson  v.  Ridley,  6 
Madd.  2;  Ex  parte  James,  8  Ves.  351;  Ex  parte  Lacey,  6  Ves.  630; 
Watson  V.  Too7ie,(j  Madd.  153;  York  Buildings  Comjmny  v.  Mac- 
kenzie, 8  Bro.  P.  C.  42,  Toml.  ed. ;  Mill  v.  Hill,  3  H.  L.  Cas.  869:  and 
see  Popham  v.  Exham,  10  Ir.  Ch.  Rep.  440,  and  the  form  of  decree 
given.  In  estimating  improvements,  old  buildings,  if  incapable  of 
repair,  should  be  valued  as  old  materials,  but  otherwise  as  buildings 
standing:  Robinson  v.  Ridley,  6  Madd.  2.  . 
270 


FOX  tJ.  MACKRETU.  .        *210 

When,  however,  the  sale  has  been  set  aside  for  actual  fraud,  no 
allowauce  will,  ordinarily,  be  made  for  money  laid  out  in  improving 
the  estate  {Keiiney  v,  Browne,  3  Ridg.  518;  Stratum  v.  Murphy,  \ 
Tr.  Rep.  Eq.  3G1 ;  but  see  Oliver  v.  Court,  8  Price,  172),  but  an  allow- 
ance will  be  made  for  necessary  repairs:  Baugh  v.  Price,  1  G.  Wils. 
320. 

Although  the  purchaser  has  paid  *  the  pvarchase-mouey  [  *  210  ] 
into  Court,  and  it  has  been  invested  in  the  funds,  he  will 
not  be  entitled  to  any  benefit  from  any  advance  in  the  funds,  but 
to  his  purchase- money  and  interest  only,  for,  if  the  stock  had  fal- 
len, instead  of  advancing,  ho  could  not  have  been  compelled  to  take 
it:  Ex  parte  James,  8  Ves.  351. 

It  seems  that  where  a  reconveyance  by  the  purchaser  is  directed, 
it  must,  unless  a  lien  be  given  to  liim  for  the  balance  on  taking  the 
accounts,  be  made  at  once  before  the  accounts  are  taken  {Trevelyan 
V.  Charter,  9  Beav.  140),  and  a  solicitor,  a  sale  to  whom  from  his 
clients  was  set  aside,  has  been  compelled  to  produce  the  title-deeds 
before  payment:  Shallcross  v.  Weaver,  12  Beav.  272;  2  Hall  &  T. 
231. 

In  a  great  case  upon  an  appeal  from  the  Court  of  Session  in 
Scotland  (  York  Buildings  Company  v.  Mackenzie,  8  Bro.  P.  C.  42,  . 
Toml.  ed. ),  the  reconveyance  was  ordered,  without  prejudice  to  the 
titles  and  interests  of  the  lessees  and  others  who  might  have  con- 
tracted with  the  defendant  bonCt  fide,  and  before  the  commence- 
ment of  the  suit.  Lord  St.  Leonards,  apparently  thinking  that  this 
part  of  the  decree  infringed  upon  the  doctrine  that  purchasers 
from  the  defendant  (including  lessees),  who  took  with  notice,  ought 
to  be  equally  liable  to  have  their  transactions  with  him  set  aside, 
accounts  for  the  exception  in  their  favour,  upon  two  grounds:  the 
one,  that  no  notice  was  charged  on  the  lessees,  nor  were  the  leases 
attempted  to  be  impeached;  moreover,  that  the  relief  sought  bad 
been  delayed  for  many  years;  and  that  the  point  established  by  the 
House  of  Lords  was,  to  sav  the  least,  a  new  doctrine  with  reference 
to  Scotland:  3  Sug.  V.  &  P.  243,  10th  ed. 

It  must,  however,  be  observed,  that  the  exception  in  the  decree 
was  only  in  favour  of  lessees  and  others  who  had  contracted  bond 
fi,de,  words  which  would,  it  seems,  be  sufficient  to  exclude  lessees  and 
others  who  had  taken  with  notice  of  the  equity  which  the  plaintiffs 
had  against  the  defendant,  although,  as  they  were  not  parties  to  the 
suit,  it  would  have  been  necessary  to  have  taken  proceedings  against 
them,  alleging  and  proving  notice,  in  order  to  set  aside  the  leases 
granted  to  them  by  the  defendant. 

If  the  cestui  que  trust  does  not  wish  for  a  reconveyance  of  the 
property,  an  order  will  be  made,  that  the  expense  of  repairs  and  im- 
provements not  only  substantial  and  lasting,  but  such  as  have  a 
tendency  to  bring  the  estate  to  a  better  sale,  after  making  an  allow- 
auce for  acts  that  deteriorate  the  value  of  the  estate,  shall  be  added 
to  the  purchase- money,  and  that  the  estate  shall  be  put  up  at  the 

271 


*  212  FOX  V.  MACKRETH, 

accumulated  sum;  if  any  one  makes  an  advance  upon  that 
[*  211  ]  sum,  *  the  trustee  shall  not  have  the  estate;  if  no  one 
does,  he  will  be  held  to  his  purchase;  {Ex  j)arte  Reynolds, 
5  Ves.  707 ;  Ex  j^cirte  Hughes ;  Ex  parte  Lacey ;  Lister  v.  Lister,  6 
Ves.  617,  625,631;  Ex  j^wte  Bennett,  10  Ves.  281;  Ex  parte  Hew- 
itt_,  2  Mont.  &  Ayr.  477;  Stepney  v.  Biddulph,  18  \\ .  K.  (V.-C.  ^\ .) 
576;  Tennant  v.  Trenchard,4:  L.  R.  Ch.  App.  546);  but  where  the 
trustee  has  bought  the  estate  in  one  lot,  and  the  cestuis  que  trust 
are  desirous  of  having  it  sold  in  several  lots,  the  cestuis  que  trust 
must  first  repay  him  all  the  money  he  has  advanced,  with  interest, 
he  accounting  for  the  rents  received  by  him,  or  paying  an  occupa- 
tion rent,  if  he  actually  occupied  the  estate:  Ex  parte  James,  8  Ves. 
351. 

Where  the  trustee  has  resold  the  estate,  the  cestui  que  trust  can, 
as  in  the  principal  case,  make  him  account  for  what  he  has  re- 
ceived over  and  above  the  purchase- money  he  himself  paid,  with  in- 
terest at  4Z.  per  cent.  {Ex  j^ctt'te  Reynolds,  5  Ves.  707 ;  Hall  v.  Hallet, 
1  Cox,  134] ;  and  no  allowance  will  be  made  to  him  for  any  loss  he 
has  incurred  in  the  investment  of  what  he  received:  Armstrong  v. 
Armstrong,  7  L.  R.  I.  207. 

The  costs  of  the  suit,  where  the  sale  is  set  aside,  must  be  paid  by 
the  trustee;  {Sanderson  v.  Walker,  13  Ves.  601;  Hall  v.  Hallet,  1 
Cox,  141;  Whichcote  v.  Lawrence,  3  Ves.  740;  Dunbar  v.  Treden- 
nick,  2  Ball  &  B.  304;  see,  however,  Baker  v.  Carter,  1  Y.  &  C. 
Exch.  Ca.  250;  Doivnes  y.  Grazehrook,  3  Mer.  209);  unless  there 
has  been  great  delay  on  the  part  of  the  cestui  que  trust:  Attorney- 
General  v.  Lord  Dudley,  Coop.  146.  And  even  if  the  cestui  que 
trust  fails  to  set  aside  the  sale,  on  account  of  his  own  delay,  the 
Court  may  refuse  the  trustee  his  costs:  Gregory  v.  Gregory,  Coop. 
201 ;  Champion  v.  Righy,  1  Russ.  &  My.  539.  As  to  costs,  when  a 
trustee  is  accused  of  actual  fraud  not  made  out,  see  Parker  v. 
Mackenna,  10  L.  R.  Ch.  App.  96,  129. 

Acquiescence.^ — A  cestui  que  trust  who  wishes  to  set  aside  a  pur- 
chase by  a  trustee  must  apply  within  a  reasonable  period,  Campbell 
V  Walker,  5  Ves.  680,  682,)  [Alexander  v.  Alexander,  46  Ga.,  291; 
Harrison  v.  McHenry,  9  Ga.  164,]  which  is  in  general  less  than  the 
time  allowed  by  the  Statute  of  Limitations  {Morse  v.  Royal,  12  Ves. 
374),  and  depends  upon  the  circumstances  of  each  particular  case. 

Thus  mere  lapse  of  time  for  a  long  period,  which  will  of  itself  bo 
evidence  of  acquiescence,  in  an  improper  transaction,  will  disable  a 
person  from  coming  into  a  Court  of  equity  to  set  it  aside;  [A  court 
of  equity  discourages  stale  claims,  and  a  party  loses  his  right  to 
complain  of  a  fraud  by  delay:  Rath  v.  Vanderlyn,  44  Mich.  597.] 
Morse  v.  Rogal,  12  Ves.  355;  Price  v.  Byrne,  cited  with  approba- 
tion by  Lord  Alvanley  in  Campbell  v.  Walker,  5  Ves.  631;  Cham- 
pion V.  Rigby,  1  Kuss,  &  My.  539;  Robei-tsv.  Tunstall,^ 
[  *212  ]  Hare,  257;  Beaden  v.  King,  9  *Hare,  499,  532;  Baker  v. 
272 


FOX  V.  MACKRETH.  *  21  2 

Read,  18  Boav.  30(S:  Marquis  of  ClanricarcJo  v.  Hp.nning,  80  Beav. 
175;  Wenticorlhw  Lloyd,  '62  Boav.  407;  Atf.  Dom.  Proc.  10  Jur.  N. 
S.  901;  In  re  McKenna's  Estate,  18  Ir.  Ch.  Rt'p.  280;  Barter  II  v. 
Bartvell,  34  Beav.  871;  and  see  Seagram  v.  Knight,  3  JL.  R.  Eq.  898, 
varied  on  appeal,  2  L.  R.  Ch.  App.  028.  For  long  acquiescence 
under  a  sale  to  a  trustee,  ought  to  be  taken  as  evidence,  that  as 
between  the  trustee  and  cestui  que  trust,  the  trustee  and  cestui  que 
trust,  the  relation  had  been  abandoned  in  the  transaction;  and  that 
in  all  other  respects  it  was  fair;  per  Lord  Eldon,  C,  in  Parkes  v. 
White,  11  Ves.  220. 

Where  there  are  other  circumstances,  showing  acquiescence  be- 
yond the  mere  la[)se  of  time,  a  delay  for  a  shorter  period  will  be  a 
bar  to  relief,  Wright y.  Vanderplank,  2  K.  &  J.  1;  Bakery.  Brad- 
ley,  7  De  G.  Mac.  &  G.  597.  [In  many  cases  courts  of  equity 
have  taken  the  statutes  of  limitations  as  standards  by  which 
to  measure  the  lapse  of  time  allowed  for  the  assertion  of  an  equit- 
able right,  but  chancery  will  apply  their  own  doctrine  when- 
ever the  case  requires  it:  Buckingham  v.  Lundlow,  37  N.  J.  Eq. 
138;  Kerr  on  Fraud  and  Mistake,  804;  Bell  v.  Moon,  79  Ya.  841; 
Alloro  V.  Jewell,  4  Otto,  512,  AVilson  v.  Anthony,  19  Ark.  10;  John- 
son V.  Johnson,  5  Ala.  90;  Ferson  v.  Sanger,  22  Ware,  250.J 

It  has  been  laid  down  by  an  eminent  judge  that  "to  fix  acquies- 
cence upon  a  party,  it  should  unequivocally  appear  that  he  knew 
the  fact  upon  which  the  supposed  acquiescence  is  founded,  abd  to 
which  it  refers,"  per  Sir  William  Grant,  M.  R.,  in  Randall  v.  Er- 
ringtoii,  10  Ves.  428:  see  also,  Chalmer  v.  Bradley,  1  J.  &  "W.  51; 
Trevelyan  v.  Charter,  9  Beav.  140;  S.  C,  11  C.  &  F.  714;  4  L.  J. 
(N.  S.)  Ch.  209;  Saveryy.  King,  5  H.  L.  Cas.  024,  007;  De  Bussche 
V.  Alt,  8  Ch.  D.  286.  It  seems,  however,  that  there  may  be  cases  in 
which,  from  the  great  lapse  of  time,  the  knowledge  of  such  facts 
ought  to  be  presumed:  Life  Association  of  Scotland  v.  Siddell,  8 
De  G.  F.  &  Jos.  58;  and  see  and  consider  Knight  v.  Majoribanks, 
11  Beav.  322,  2  Mac.  &  G.  10. 

The  distress  of  the  cestui  que  trust  may  be  an  excuse  for  acqui- 
escence; {Gregory  y.  Gregory,  Coop.  201;  Roche  v.  O^Brien,  1  Ball 
&  B.  342;  Robeiis  v.  Tiinstall,  4  Hare,  257,  207;  Gresley  v.  Mousley, 
4  De  G.  &  Jo.  78,  98,  eed  vide  Life  Association  of  Scotland  v.  Siddell, 
3  De  G.  F.  &  J.  58);  but  it  has  been  held  that  the  imputation  of 
laches  does  not  in  an  equal  degree  apply  to  a  body  of  creditors,  to 
whom  relief  will  be  granted  when  it  would  be  refused  to  an  indi- 
vidual: see  case  in  the  Exchequer,  cited  0  Ves.  082;  Whichcote  v. 
Laivrcnce,  3  Ves.  740;'  York  Buildings  Company  v.  Mackenzie,  8 
Bro.  P.  C.  42,  Toml.  ed. 

But  even  creditors  have  been  refused  relief  when  their  laches 
have  been  gross;  as  for  instance,  where  they  acquiesced  in  a  sale 
for  thirty- three  years:  Hercy  v.  Dimvoody,  2  Ves.  Jun.  87. 

And  in  considering  lapse  of  time  it  only  commences  to  run  from 
the  discovery  of  the  circumstances  giving  the  title  to  relief  ( Tre- 

18   WHITK  ox    EQUITY.  273 


*  213  FOX  V.  MACKRETH. 

vehjanv.  Charter,  9  Beav.  140;  11  C.  &  F.  714;  4  L.  J.  (N.  S.) 
Ch.  209;  The  Marquis  of  Clanricarde  v.  Henning,  30 
[*213]  Beav.  175;  *  Vane  v.  Vane,  8  L.  E.  Ch.  App.  383);  and 
against  a  person  under  disal)ility  from  tho  time  they  be- 
come sni  juris:  Campbell  v.  Walker,  5  Ves.  678,  682;  Randall  v. 
Errington,  10  Ves.  427;  Morse  \.  Royal,  12  Ves.  373. 

Bat  femes  covert  are  considered  as  femes  sole  with  regard  to  prop- 
erty to  which  they  are  entitled  to  their  separate  use,  unless  it  be 
settled  without  power  of  anticipation.  See  Hulme  v.  Tenant,  and 
note,  posi 

Nor  will  time  in  general  run  against  a  party  so  long  as  his  inter- 
est is  contingent  or  reversionary  ( Gowland  v.  De  Faria,  17  Ves.  20; 
Bennett  v.  Colleij,  5  Sim.  191 ;  Duke  of  Leeds  v.  Lord  Amherst,  2 
Ph.  117;  Broitvie  v.  Cross,  14  Beav.  105;  Ho2:>e  v.  Liddell,  21  Beav. 
183;  Life  Association  of  Scotland  v.  Siddal,  3De  G.  F.  &  Jo.  58,  7. 
Jur.  N.  S.  785;  Boiven  v.  Evans,  1  Jo.  &  L.  178),  or  dependent  on 
the  will  of  the  trustee  making  the  purchase  (Roberts  v.  Tunstall,  4 
Hare,  257),  but  the  fact  of  the  interest  being  reversionary  does  no^. 
prevent  tho  party  interested  assenting  to  a  breach  of  trust:  Life  As- 
sociation of  Scotland  v.  Siddal,  3  De  G.  F.  &  Jo.  58. 

And  where  fraud  has  been  established  against  a  party,  it  is  for 
him,  if  he  alleges  laches  in  tho  other  party,  to  show  when  the  latter 
acquired  a  knowledge  of  the  truth,  and  prove  that  he  knowingly 
forbore  to  assert  his  right:  The  Lindsay  Petroleum  Comijany  v. 
Hind,  5  L.  E.  P.  C.  221. 

Although  acquiescence  in  an  improper  sale  may  have  the  efPect 
of  not  enabling  a  party  to  set  it  aside,  it  nevertheless  will  not  be  suf- 
ficient to  induce  a  court  of  equity  to  exercise  its  discretionary  power 
of  compelling  specific  performance  of  the  agreement  to  sell:  Salmon 
V.  Cutis,  Cutts  V.  Salmon,  4  De  G.  &  Sm,  125. 

Where  a  bill  to  set  aside  a  purchase  by  a  solicitor  from  his  client 
is  dismissed  on  the  ground  of  lapse  of  time,  the  Court  gives  the 
solicitor  no  costs  unless  he  proves  the  fairness  of  the  transaction: 
The  Marquis  of  Clanricarde  v.  Henning,  30  Beav.  175. 

Confirmation.^ — -A  cestui  que  trust,  if  sui  juris  (Campbell  x. 
Walker,  5  Ves.  678,  682)  may  confirm  an  invalid  sale,  so  that  he 
cannot  afterwards  set  it  aside:  Morsey.  Palmer,  12  Ves.  353;  Roche 
V.  O'Brien,  1  Ball  &  B.  353;  Dover  v.  Buck,  5  Giff.  57.  [The  right 
to  impeach  a  transaction  on  the  ground  of  fraud  may  be  lost  by 
confirmation,  but  when  such  a  defence  is  relied  on  it  must  clearly 
appear  that  the  party  confirming  was  fully  apprised  of  his  right  to 
impeach  the  transaction:  Kerr  on  Fraud  and  Mistake,  286.]  And 
a  feme  covert  as  to  property  to  which  she  is  entitled  to  her  separate 
use  without  any  fetter  upon  anticipation,  has  the  same  power  as  a 
feme  sole:  Hulme  v.  Tenant,  and  note,  post;  and  as  to  real  prop- 
erty not  so  settled,  she  can  by  deed  executed  under  the  Fines  and 
Recoveries  Act  (3  &  4  Will.  4,  c.  74),  confiz-m  such  sale. 
274 


FOX  V.  MACKKETII.  *  -^14 

But  in  order  to  constitute  a  valid  confirmation,  a  person 
must  be  aware  *  that  the  act  he  is  doing  will  have  the  ef-  [  *  214  ] 
feet  of  coniirming  an  impeachable  transaction:  Murray  v. 
Palmer,  2  S.  &  L.  480;  Dunbar  v.  Tredennick,  2  Ball  &  B.  317; 
Maloney  v.  JJ Estrange,  1  Beat.  413;  Adams  v.  Clifton,  I  Russ.  2'.J7; 
Cockerellw.  Cholmeley,  1  Buss,  k,  My.  425;  Chalmer  v.  Bradley,  1 
J.  W.  51;  De  Montmorency  \.  Devereu.r,  7  C,  &  F.  188;  Salmon  v. 
Cutts,  4  De  G.  &  Sm.  129;  ,S'^it»i/>  v.  rra6?/,  2  De  Gex,  Mac.  &  G. 
028,  loafers  v.  T/iorn,  22  Beav.  547;  Lloyd  v.  Attwood,  3  De  G.  & 
Jo.  650;  and  see  Lyddon  v.  Moss,  4  De  G.  &  Jo.  104;  Kemjwon  v. 
Ashbee,  10  L.  K  Ch.  App.  15. 

Nor  will  the  act  of  confirmation  be  valid,  if  it  be  done  in  distress 
and  difficulties,  under  the  force  pressure  and  influence  of  the  former 
transaction  (Crowe  v.  Ballard,  3  Bro.  C.  C.  139;  Wood  v.  Doirnes, 
13  Ves.  128;  Roche  v.  O'Brien,  1  Ball  &  B.  330;  Roberts  v.  Tun- 
stall,  4  Hare,  257):  and  it  must  bean  act  separate  and  distinct  from 
the  impeachable  transaction,  and  not,  as  in  the  principal  case,  a 
conveyance  executed  in  consequence  of  a  contract  or  covenant  con- 
nected with  it:  Morse  v.  Royal,  12  Ves.  370;  Wood  v.  Doivnes,  18 
Ves.  124,  128;  Roche  v.  O'Brien,  1  Ball  &  B.  338.  [A  defrauded 
party  cannot  both  affirm  and  rescind  a  contract;  he  may  elect  be- 
tween the  two  and  if  be  chooses,  do  the  latter. 

Any  act  by  which,  with  knowledge  of  the  fraud  he  treats  the  con- 
tract as  subsisting,  will  be  an  affirmation  precluding  rescission: 
Hi^gs  V.  Smith,  3  A.  K.  Marsh,  388;  Evans  r.  Foreman,  GO  Mo. 
449;  Cobbs  v.  Hatfield,  46  N.  Y.  533;  Jackson  v.  Jackson,  47  Ga. 
99. 

Doctrine  of  Purchase  by  a  Trustee  for  Sale,  Restated. — The  re- 
lation of  trustee  and  cestui  que  trust  is  one  of  peculiar  confidence. 
The  trustee,  owing  to  his  position,  has  an  ample  opportunity  to  ob- 
tain a  thorough  knowledge  of  the  present  and  prospective  value  of 
the  trust  property,  which  knowledge  the  cestui  que  trust  not  being 
actively  engaged  in  the  management  of  the  estate  has  not  the 
means  of  obtaining.  The  rule  generally  is,  that  a  trustee  cannot 
purchase  any  part  of  the  trust  estate  or  accept  a  gift  from  the 
cestui  que  trust,  and  if  he  does  purchase,  the  transaction  is  gener- 
ally voidable  at  the  option  of  the  cestui  que  ti^ust.  The  above  rule 
is  due  in  a  large  measure  to  the  fact  that  the  trustee  stands  in  such 
a  position  as  to  acquire  an  habitual  influence  over  the  cestui  que, 
and  the  trustee  cannot  for  that  reason  accept  a  personal  benefit 
without  exposing  himself  to  the  risk  of  having  it  set  aside  as  being 
unduly  obtained. 

Courts  of  Equity  look  with  extreme  jealousy  on  transactions  be- 
tween parties  whostand  in  any  fiduciary  relation  or  relations  of  a 
similar  character  by  which  an  undue  influence  may  be  obtained  by 
one  over  the  other,  and  unless  the  person  who  received  the  benefit 
can  show  that  it  was  conferred  understandingly  and  with  a  full 

275 


*  215  LAKE  V.  GIBSON. 

knowledge  of  the  circumstances  and  apart  from  the  bias  of  that 
connection  equity  will  set  the  entire  transaction  aside. 

The  parties  between  whom  this  confidential  relation  is  supposf'd 
to  exist  are  trustee  and  cestui  que  trust,  guardian  and  ward,  parent 
and  child,  solicitor  and  client,  medical  or  religious  advisors,  princi- 
pal and  agent,  husband  and  wife,  executors  and  administrators, 
directors  of  a  corporation,  of  a  society,  and  all  others  who  occupy  a 
position  of  trust  and  confidence  towards  others. 

This  rule  does  not  apply  however,  to  a  person  who  has  been 
named  as  a  trustee  but  who  has  disclaimed  without  having  acted  in 
the  trust:  Lewin  on  Trusts,  630  (Text  Book  Series).] 

A  confirmation  of  an  invalid  sale,  by  the  majority  of  the  creditors 
of  a  bankrupt,  will  not  be  binding  upon  the  minority:  in  order  to 
be  binding  all  must  join  therein :  see  Ex  parte  Lacey,  6  Ves.  628 ; 
aSm'  G.  Colehrooke' s  case,  cited  Ex  parte  Hughes,  6  Ves.  622,  over- 
ruling Whelpdale  v.  Cookson,  cited  in  Campbell  v.  Walker,  5  Ves. 
682;  S.  a,  1  Ves.  9:  Ex  parte  Thwaites,  1  M.  &  A.  323:  Tommey 
V.  White,  3  H.  L.  Cas.  49. 


[*215]  *LAKE  X.  GIBSON. 

Tri7i.  Term,  1729. 

[reported    1    EQ.    CAS.    AB.     294,   PL.     3.] 

Joint  Purchasers.] — Where  several  persons  make  a  joint  purchase 
for  the  purposes  of  a  joint  undertaking  or  partnership,  either  in 
trade  or  any  other  dealing,  although  they  are  joint-tenants  at  law, 
in  equity  they  ivill  he  considered  as  tenants  in  common,  and  the 
survivors  as  trustees  for  those  tvho  are  dead. 

The  Commissioners  of  Sewers  had  sold  and  conveyed  lands  to  five 
persons  and  their  heirs,  who  afterwards,  in  order  to  improve  and 
cultivate  those  lands,  entered  into  articles  whereby  they  agreed  to  be 
equally  concerned  as  to  profit  and  loss,  and  to  advance  each  of  them 
such  a  sum  to  be  laid  out  in  the  manurance  and  improvement  of  the 
land. 

Sir  Joseph  Jekyll,  M.  E..,  held  that  they  were  tenants  in  common, 
276 


LAKE  V.  CRADDOCK.  *  317 

and  not  joint  tenants,  as  to  the  beneficial  interest  or  right  in  thoBO 
lands,  and  that  the  survivor  should  not  go  away  with  the  whole;  for 
then  it  might  happen  that  some  might  have  paid  or  laid  out  their 
share  of  the  money,  and  others,  who  had  laid  out  nothing,  go  away 
with  the  whole  estate. 

And  his  Honor  held,  that  when  two  or  more  purchase  lands,  and 
advance  the  money  in  equal  proportions,  and  take  a  conveyance  to 
them  and  their  heirs,  that  this  is  a  joint-tenancy;  that  is,  a  purchase 
by  them  jointly  of  the  chance  of  survivorship,  which  may  happen  to 
the  one  of  them  as  well  as  to  the  other;  but  where  the  propor- 
tions of  the  money  are  not  equal,  and  this  appears  in  the  deed 
itself,  this  makes  them  in  the  nature  of  jjartners;  and 
*  however  the  legal  estate  may  survive,  yet  the  survivor  [  *  216] 
shall  be  considered  but  as  a  trustee  for  the  others,  in  pro- 
portion to  the  sums  advanced  by  each  of  them. 

Sb,  if  two  or  more  make  a  joint  purchase  and  afterwards  one  of 
them  lays  out  a  considerable  sum  of  money  in  repairs  or  improve- 
ments, and  dies,  this  shall  be  a  lien  on  the  land,  and  a  trust  for  the 
representative  of  him  who  advanced  it;  and  that  in  all  other  cases 
of  a  joint  undertaking  or  partnership,  either  in  trade  or  any  other 
dealing,  they  were  to  be  considered  as  tenants  in  common,  or  the 
survivors  as  trustees  for  those  who  were  dead. 


*  LAKE  V.  CRADDOCK.  [  *  217  ] 

{On  an  Appeal  from  the  Decree  at  the  Rolls  in  Lake  z). 

GlBSOI!f.) 


Be  Term.  S.  Michaelis,  1732. 

[reported  3  p.   WMS.    158.J 

Joint  Purchasers.  ] — BHve  persods  purchased  West  Thorock  Level 
from  the  Commissioners  of  Stivers,  and  the  purchase  teas  to  them 
as  joint  tenants  in  fee;  but  they  contributed  rateably  to  the  pur- 
chase, ivhich  was  with  an  intent  to  drain  the^evel;  after  which 
several  of  them  died.  They  were  held  to  be  tenants  in  common  in 
equity;  and  though  one  of  these  five  undertakers  deserted  the 
partnership  for  thirty  years,  yet  he  ivas  let  in  afterwards,  on  terms. 

277 


*;  218  LAKE  V.  CRADDOCK. 

The  case  was  thus:  Great  part  of  the  lands  in  "West  Thorock,1n 
Essex,  having  been  overflowed  by  the  River  Thames  near  Dagen- 
ham,  and  the  landowners  not  thinking  it  worth  their  while  to  pay 
the  assessments  made  on  them  by  the  Commissioners  of  Sewers, 
the  Commissioners  decreed  the  lands  to  be  forfeited,  and  conveyed 
them  to  three  trustees  in  trust  to  sell,  and  raise  money  for  the 
draining  of  these  overflowed  lands. 

The  defendant  Craddock's  father,  the  plaintiff  Lake,  and  three 
others,  five  in  all,  having  entered  into  an  undertaking  to  drain  the 
level  or  overflowed  lands  of  West  Thorock,  the  trustees  for  the  sale, 
by  the  consent  and  direction  of  the  Commissioners  of  Sewers,  did, 
by  deed,  indented  and  enrolled,  dated  the  8th  of  February,  1G95,  in 
consideration  of  5145Z.  paid  to  the  Commissioners  by  the  five  pur- 
chasers, convey  this  level  to  the  defendant  Craddock's  father,  the 
plaintiff  Lake,  the  three  others,  and  their  heirs;  upon 
[  *  218  ]  which  several  sums  of  money  were  *  expended  in  carrying 
on  the  undertaking;  and  in  1699,  the  defendant  Crad- 
dock's father  paid  his  last  contribution,  which,  with  what  he  had  ad- 
vanced before,  came  in  all  to  1025Z. 

Afterwards,  it  seeming  to  be  an  enterprise  which  would  prove 
very  expensive,  and  there  being  some  uncertainty  as  to  the  success 
of  it,  the  defendant  Craddock's  father  wholly  deserted  it,  and  never 
more  concerned  himself  therewith. 

The  four  other  undertakers  were  advised  that  some  neighbour- 
ing lands  would  be  of  service  to  their  design;  upon  which,  in  April, 
1703,  they  purchased  the  manor  of  Porretshalls,  in  West  Thorock, 
of  the  Lady  Smith,  for  2550Z.,  and  in  February  following  purchased 
the  moiety  of  the  rectory  and  tithes  of  West  Thorock  for  1400Z.  of 
Sir  Charles  Tyrrell;  which  two  purchases  were  thought  useful  in 
the  undertaking,  and  were  made  in  the  names  of  the  four  under- 
takers, omitting  Craddock;  nor  did  it  appear  that  he  was  ever  con- 
sulted therein,  or  desired  to  contribute  to  the  purchase.  Craddock, 
the  father,  died,  leaving  the  defendant  Craddock,  the  son,  his  heh' 
and  executor. 

The  plaintiff,  Sir  Bibye  Lake,  one  of  the  original  partners,  brought 
this  bill  against  the  rest  of  the  partners,  or  their  representatives, 
for  an  account  and  division  of  the  partnership  estate.  And  on  the 
first  coming  on  of  the  cause,  at  the  Eolls,  his  Honor  referred  it  to 
the  Master  to  state  a  case  between  the  parties,  for  the  judgment  of 
the  Court.  And  the  Master  having  made  his  report,  the  cause  was 
278 


LAKE  V.  CRADDOCK.  *  219 

thereupon  heard,  when  the  principal,  or  rather  the  only  question 
was,  whether  these  five  purchasers  paving  uiado  this  purchase 
jointly,  so  as  to  become  in  law  joint  tenants,  the  same  should  sur- 
vive in  equity? 

Sir  Joseph  Jekyll,  M.  K.,  on  debate,  decreed  that  the  survivorRhij) 
should  not  take  place;  for  that  the  payment  of  money  created  a 
trust  for  the  parties  advancing  the  same;  and  an  undertaking  upon 
the  hazard  of  profit  or  loss  was  in  the  nature  of  merchandising  {t), 
when  the  jus  accrescendi  is  never  allowed;  that  supposing  one  of 
the  partners  had  laid  out  the  whole  of  the  money,  and  had 
*  happened  to  die  first,  according  to  the  contrary  con-  [*  219] 
struction,  he  must  have  lost  all,  which  would  have  been 
most  unjust  (u).  Wherefore,  it  was  deci'eed  that  these  five  pur- 
chasers were  tenants  in  common,  not  only  as  to  the  level  lands 
which  were  first  purchased,  but  also  with  respect  to  the  lands 
bought  afterwards  by  the  four  undertakers  of  the  Lady  Smith  and 
Sir  Charles  Tyrrell:  but  that  the  defendant  Craddock  ought  not  to 
have  the  benefit  of  this  tenancy  in  common,  unless  he  would  pay 
so  much  money  as  would  make  up  what  had  been  already  advanced 
by  his  father  equal  to  what  had  been  contributed  by  each  of  the  other 
partners,  together  with  interest  for  the  same  from  the  respective 
times  that  Craddock,  the  father,  ought  to  have  made  those  pay- 
ments; and  on  the  defendant  Craddock's  paying  the  same,  then  all 
the  said  lands  to  be  divided  into  five  parts,  the  defendant  Crad- 
dock to  have  one-fifth:  but,  on  default  of  payment,  the  defendant 
Craddock  to  bo  excluded,  and  the  lands  to  be  divided  and  distribu- 
ted into  four  parts  among  the  four  other  partners. 

Argument  for  the  A2)2}ellant.] — From  this  deci'ee  the  defendant 
Craddock  appealed  to  the  Lord  Chancellor  King,  insisting  that  he 
ought  either  to  receive  back  the  1025Z.,  which  it  was  admitted  his 
father  expended  in  this  undertaking,  or  to  be  allowed  to  come  in  for 
a  share  of  the  level  only,  and  not  to  be  bound  to  contribute  towards 
the  two  pux'chases  made  by  the  four  other  undertakers  of  the  Lady 
Smith  and  Sir  Charles  Tyn-ell:  that  the  four  other  undertakers  had 
chosen  to  make  these  two  purchases  in  their  own  names  only,  by 
which  they  seemed  to  have  excluded  Craddock  from  all  concern 
therein,  and  of  which,  had  it  proved  never  so  beneficial  he  would 
have  had  no  means  of  forcing  them  to  admit  him  to  a  share  ;  and 

{t)  1  Inst.  182;  1  Vern.  217:  2  Lev.  188.  228. 

(m)  Sec  y  Ves.  549;  Dale  v.  Hamilton,  5  Hare,  385. 

279 


.*  221  LAKE  V.  CRADDOCK. 

therefore,  now  that  it  had  turned  out  a  losing  bargain,  there  could 
be  no  reason  to  compel  him  to  bear  a  proportion  of  the  loss.  Be- 
sides, there  was  nothing  in  the  articles  empowering  the  partners,  or 
the  major  part  of  them,  to  buy  lands;  and,  by  the  same  reason  that 

they  would  oblige  Craddock  to  pay  his  share  towards  these 
[  *  220  ]  purchases,  they  might,  if  they  had  fancied  *  buying  half 

the  country,  have  compelled  him  to  contribute  to  that  also. 
That  it  was  difficult  to  conceive  how  the  uplands  thus  purchased, 
much  less  the  tithes,  could  be  of  any  use  in  the  undertaking;  though, 
as  to  the  charge  of  draining  the  level,  exclusive  of  the  two  purchases, 
the  defendant  Craddock  was  willing  to  advance  his  proportion. 

It  was,  moreover,  pretended,  that  the  decree  was  unreasonable, 
on  account  of  its  having  directed  that  the  defendant  Craddock,  in 
order  to  be  admitted  to  one-fifth,  should  pay  not  only  his  propor- 
tion of  those  two  purchases,  but  also  of  the  interest  of  the  purchase- 
money,  from  the  time  that  his  father  ought  to  have  made  these 
payments:  whereas  the  direction  ought  to  have  been,  that  an  account 
should  be  taken  of  the  profits  of  these  two  purchases,  which  profits 
might  have  amounted  to  as  much  as  the  interest,  or,  if  not  quite  so 
much,  yet  that  the  defendant  Craddock  ought  to  pay  no  more  to- 
wards such  interest  than  the  deficiency  of  the  quantum  of  the  profits 
would  come  to. 

Argument  for  the  Respondent.^ — To  which  it  was  answered  by 
Mr.  Solicitor  Talbot  that,  as  the  defendant  Craddock's  faiher  and 
himself  had  for  so  long  a  time  (near  thirty  years)  relinquished  and 
abandoned  the  partnership,  and  in  regard  that  the  defendant  Crad- 
dock had  no  manner  of  right  thereto  but  through  the  indulgence  of 
a  court  of  equity  (it  being,  by  law,  a  joint  tenancy,  and  as  such, 
belonging  to  the  sui'vivors),  it  was  a  favourable  decree  to  let  him  in 
upon  any  terms;  and  surely  the  terms  now  offered  him  must  appear 
reasonable,  viz.,  that  he  should,  upon  his  contributing  to  all  the 
expenses  that  had  been  contracted  and  incurred  by  reason  of  any 
purchases  or  otherwise,  in  the  prosecution  of  the  undertaking,  be 
admitted  to  one-fifth  of  the  partnership;  that  had  the  defendant 
Craddock  brought  his  bill  for  the  benefit  of  such  undertaking,  he 
could  not  have  hoped  to  succeed  on  any  other  conditions:  that  it 
was  still  stronger  against  him,  in  that  he  now  seemed  to  decline 
meddling  with  the  undertaking,  so  that  here  was  rather  great  favour 

shown  him  than  any  hardship  imposed:  that  he  was  not 
[  *  221  ]  absolutely  and  at  all  events  bound  by  this  *  decree  to  pay 
280 


LAKE  V.  CRADDOCK.  *  222 

his  proportion  towards  the  new  purchases,  but  had  it  in  his  elec- 
tion whether  he  would  do  it  or  no  :  that  as  to  the  interest  which 
was  required  of  him  previous  to  his  being  admitted  into  the  part- 
nership, it  was  reasonable  he  should  pay  it  for  his  default  in  not 
having  contributed  his  share  of  the  principal  before,  which  if  he 
had  done,  he  would  not  have  been  charged  with  the  interest;  and 
this  was  some  disadvantage  to  the  other  four  partners,  who  had 
been  deprived  of  their  arrear  of  interest  for  near  thirty-five  years  : 
that,  in  truth,  the  design  of  the  defendant  Craddock  appeared  to  be  to 
delay  matters,  and  to  defer  the  bringing  in  of  his  money  and  interest 
till  such  time  as  this  long  account  of  the  profits  should  be  taken, 
which  would  require  many  years  ;  and  that  if  the  defendant's 
share  of  the  profits  of  these  two-  purchases  should  exceed  his  pro- 
portion of  the  interest,  the  surplus,  on  the  making  up  of  the  accounts, 
must  be  paid  him. 

For  these  reasons,  the  decree  of  the  Master  of  the  Rolls  was  af- 
firmed. 

Lord  Chancellor  King  (v)  said,  that  this  was  plainly  a  tenancy 
in  common  in  equity,  though  otherwise  at  law;  and  the  defendant 
Craddock  having  only  a  title  in  equity,  that  he  must  do  equity,  and 
that  this  was  equitable  in  all  its  branches;  for  he  had  his  election 
to  drop  all  claim,  or  to  take  it  on  the  same  foot  with  the  rest  of  the 
partners;  and  that  it  was  not  reasonable  that  he  should  be  let  into 
the  account  of  the  profits  or  loss  of  the  undertaking  until  he  had 
made  his  election. 


It  is  an  invariable  rule  at  law,  that,  when  pui-chasers  take  a  con- 
veyance to  themselves  and  their  heirs,  they  will  be  joint  tenants:  and, 
upon  the  death  of  one  of  them,  the  estate  will  go  to  the  survivor. 
See  Litt.  s.  280. 

The  same  rule  prevails  in  equity,  except  where  circumstances  exist 
from  which  the  rule  of  law  is  controlled  by  the  presumed  intention 
of  the  parties.  Thus,  as  is  laid  down  by  Sir  Joseph  Jekyll 
in  Lake  v.  Gibson,  where  two  or  more  *  purchase  lands  and  [  *  222] 
advance  the  purchase-money  in  equal  proportions,  and  take 
a  conveyance  to  them  and  their  heirs,  they  will  be  held  joint  tenants 
in  equity  as  well  as  at  law,  upon  this  principle,  that  it  may  be  pre- 
sumed they  intended  to  purchase  jointly  the  chance  of  survivorship. 
The  rule  of  law,  therefore,  not  being  repugnant  to  the  presumed  in- 

(v)  This  judgment  is  from  Sug.  V.  &  P.  903,  11th  edit.,  and  is  there  stated  to 
have  been  taken  from  unprinted  MS. 

281 


*  222  LAKE  V.  CRADDOCK. 

tention  of  the  parties,  will  be  followed  in  equity.  See  Taylor  v. 
Fleming,  cited  in  York  v.  Eaton,  Freem.  23;  Rigden  v.  Vallier,  3 
Atk.  735;  S.  C,  2  Ves.  258;  Rea  v.  Williams,  Sngd.  V.  &  P.,  App. 
No.  xxi.,  11th  ed.  See  Rex  v.  Williams,  Bunb.  342;  Harris  v.  Fer- 
gusson,  16  Sim.  308;  Robinson  v.  Preston,  4  K.  &  J.  505.  [Ensley 
V.  Ballentine,  4  Humph.  233;  Bank  of  America  v.  Pollock,  4  Edw. 
Ch.  415:  Campbell  v.  Drake,  4  Ired.  Eq.  94.] 

Upon  the  i-ame  principle,  where  persons  have  entered  into  a  joint 
contract  for  the  purchase  of  an  estate  to  them  and  their  heirs,  and 
have  paid  or  contracted  to  pay  the  purchase-money  in  equal  projjcr- 
tions,  a  court  ef  equity  will  not,  upon  the  death  of  one  of  them,  de- 
cree a  conveyance  to  the  survivor  and  the  heirs  of  the  deceased  pur- 
chaser as  tenants  in  common;  for  if  both  parties  to  the  contract  eon- 
tribute  equally  towards  the  purchase-money,  the  surviving  purchaser 
will  be  solely  entitled  to  the  benefit  of  the  contract,  and  to  have  a 
conveyance  of  the  estate  decreed  to  himself  alone.  [It  is  a  familiar 
doctrine  of  the  common  law  that  joint  ownership  of  either  real  or 
personal  property,  when  of  the  intimate  sort,  termed  joint  tenancy, 
is  not  severed  by  death ;  but  when  one  of  the  owners  dies,  his  inter- 
est goes  to  the  survivor  or  survivors  and  nothing  to  the  heir  or  ad- 
ministrators until  the  death  of  the  last  joint  owner,  then  all  vests 
in  the  latter's  heir  or  administrators:  4  Kent's  Com.  360,  2  Blks. 
Com.  184, 183,  399.]  See  Aveling  v.  Kni2oe,  19  Ves.  441,  where  Sir  W. 
Grant,  M.  E.,  observed  that  a  doubt  had  been  suggested  whether  a 
court  of  equity  would  in  any  case  execute  such  an  agreement  by  a 
conveyance  in  joint-tenancy.  "  It  would  not,"  observed  his  Honor, 
"  if  there  were  any  circumstances  from  which  it  could  be  collected 
that  a  joint-tenancy  was  not  in  contemplation;  but  I  have  no  con- 
ception that  it  is  of  course  upon  a  controversy  between  two  purchasers 
to  depart  from  the  letter  of  the  agreement,  and  decree  them  to  be 
tenants  in  common."     And  see  Davis  v.  Symonds,  1  Cox.  402. 

In  equity,  however,  there  is  a  strong  leaning  against  joint-tenancy; 
and  whenever  circumstances  occur  from  which  it  can  reasonably  be 
implied  that  a  tenancy  in  common  was  intended,  a  Court  of  equity 
will  hold  the  survivors  of  joint  purchasers  tru-tees  of  the  legal  estate 
for  the  representatives  of  the  deceased  purchaser.  [Courts  of  equity 
sometimes  treat  joint  contracts  as  several  and  thus  transmit  a  right 
or  obligation  to  the  administrator  of  the  deceased  party:  1  Stoi-y's 
Eq.  sec.  162,  164;  Mowry  v.  Adams,  14  Mass.  327;  Gere  r.  Clark,  6 
Hill  (N.  Y. )  350.J 

In  Lake  v.  Gibson,  Sir  Joseph  Jekyll  lays»it  down  as  a  general 
rule,  that,  where  two  or  more  purchase  lands  and  advance  the  pur- 
chase-money in  unequal  proportions,  and  this  appears  on  the  deed 
itself,  this  makes  them  in  the  nature  of  partners,  and,  however  the 
legal  estate  may  survive,  yet  the  survivor  will  be  considered  in  equity 
but  as  a  trustee  for  the  other,  in  proportion  to  the  sums  advanced 
by  each  of  them.  See  also  Rigden  v.  Vallier,  3  Atk.  735;  /S.  C, 
2  Ves.  258.  The  soundness  of  the  distinction  between  equal 
282 


LAKE  V.  CRADDOCK.  *  223 

and  wioqua   advances  is  doubted  by  Mr.  ''■  Veaey,  in  a  note  [  *  223  | 
to  Jackson  v.  Jackson,  D  Ves.  507.      But  it  has   l)een  sup- 
ported by  Lord  St.  Leonards,  see  Suo:d.  V.  &  P.  902,  11th  ed.;  lltli 
edit.  698.     Sed  \ide  Hams  v.  Fergussoii,  16  Sim.  308.     Explained, 
however,  in  Robinson  v.  Preston,  4  K.  &  J.  515. 

It  will  l>e  observed,  that  Sir  Joseph  Jekyll  qualifies  the  general 
rule  laid  down  in  the  principal  case  of  Lake  v.  Gibson  by  the  words 
"and  this  appears  upon  the  deed  itself."  Lord  Hardicicke,  however, 
lays  down  the  same  rule  without  this  qualification :  lilgdcn  v.  Vallier, 

3  Atk.  735;  2  Ves.  258;  and  see  Harrison  v.  Barton,  1  J.  &  H.  293; 
Hill  v.  Hill,  8  L  11.  Eq.  140. 

The  circumstances,  however,  attending  a  purchase  in  the  names 
of  two  persons  advancing  the  purchase-moneys  in  equal  proportions, 
may  show  an  intention  that  the  parties  should  hold  as  tenants  in 
common.  See  Robinson  v.  Preston,  4  K.  &  J.  505.  But  see  and 
consider  jBone  v.  I^ollard,  24  Beav.  283.  [A  tenant  in  common  can- 
not make  a  profit  at  the  expense  of  his  co-tenant :  Duff  v.  Wilson,  22 
P.  F.  Smith,  442;  Edmund's  Appeal,  18  P.  F.  Smith,  21.] 

And  it  seems  that  parol  evidence  of  subsequent  dealings,  as  well 
as  of  surrounding  circumstances,  is  admissiljle  on  a  purchase  by  two 
])ersons  contributing  equally  to  the  cost  of  it,  to  prove  an  intention 
to  hold  in  severalty  {Harrison  v.  Barton,  1  J.  &  H.  287);  but  it 
seems  that  parol  evidence  of  statements  of  intention  is  not  admis- 
sible.— lb.     But  see  Devoy  v.  Devoy,  3  Sm.  &  G.  403. 

Again,  where  money  is  advanced  by  persons,  either  in  equal  or 
unequal  shares,  who  take  a  mortgage  to  themselves  jointly,  although 
the  debt  and  security  will  at  law  belong  to  the  survivor,  in  equity 
there  will  be  a  tenancy  in  common,  the  survivor  being  a  trustee  for 
the  personal  representatives  of  the  deceased  mortgagees:  Petty  v. 
Sty  ward,  1  Ch.  Rep.  31  Eq.  Ca.  Ab.  290;  Rigden  v.  Vallier,  2  Ves. 
258.  For  "equity  says  it  could  not  be  the  intention  that  the  inte- 
rest should  survive.  Though  they  take  a  joint  security,  each  means 
to  lend  his  own  and  to  take  back  his  own:"  Per  Lord'  Alranley,  M. 
R.,  in  Morley  v.  Bird,  3  Ves.  631;  Vickers  v.  Coicell,  1  Beav.  529  ; 
OYeiTnling Brazier  v.  Hudson,  9  Sim.  1;  and  see  Robinson  v.  Preston, 

4  K.  &  J.  505,  511.  [The  Courts  lay  hold  of  every  circumstance  to 
defeat  joint  tenancy  and  convert  it  into  tenancy  in  common:  Brother 
V.  Porter,  6  B.  Mon.  106;  Tompkins  v.  Mitchell,  2  Rand.  428; 
Barribeau  v.  Brant,  17  How.  43.] 

The  personal  representatives  of  the  deceased  mortgagees  were 
therefore  necessary  parties  to  a  bill  of  foreclosure  or  redemption 
{Vickers  v.  Cowell,  1  Beav.  529);  and  although  the  entire  legal 
estate  was  in  the  survivor,  they  were  necessary  parties  to  a  recon- 
veyance, in  order  that  they  might  give  a  valid  discharge  for  theii* 
share  of  the  mortgage-money:     Carth.  16. 

Hence  it  became  usual,  where  trustees  advanced  money  on  mort- 
gage, to  insert  a  declaration,  that,  if  one  of  the  mortgagees  died 
before  the  money  was  paid  oti,  the  receipt  of  the  survivor  should 

283 


*  224  LAKE  V.  CRADDOCK. 

[  *  224]  be  *  a  sufficient  discbarge;  and  that  the  concurrence 
of  the  personal  representative  of  the  deceased  mortgagee 
should  not  be  requisite.  [If  when  two  tenants  in  common  of  a 
joint  mortgage  term,  purchase  the  equity  of  redemption,  or  several 
engage  in  a  joint  undertaking  or  partnership,  or  trade  or  specula- 
tion, or  several  purchase  an  estate  and  pay  for  it  equally,  but  one 
improves  the  estate  at  his  own  cost,  equity  will  construe  them  to  be 
tenants  in  common  and  not  joint  tenants:  Pugh  v.  Currie,  5  Ala. 
446  ;  Kinsley  v.  Abbott,  19  Me.  430.] 

And  if  the  securities  were  acted  upon  by  the  mortgagees  this  pro- 
viso is  binding  on  them  though  they  do  not  execute  the  mortgage 
deed  :  Fish.  Mortg.  748,  4th  ed. 

These  objects  are  now  effected  by  the  61st  section  of  the  Convey- 
ancing and  Law  of  Property  Act,  1881  (44  &  45  Vict.  c.  41),  which 
enacts  that  (1)  where  in  a  mortgage  or  an  obligation  for  payment 
of  money,  or  a  transfer  of  a  mortgage  or  of  such  an  obligation,  the 
sum,  or  any  part  of  the  sum  advanced  or  owing  is  expressed  to  be 
advanced  by  or  owing  to  more  persons  than  one  out  of  money,  or  a3 
money  belonging  to  them  on  a  joint  account,  or  a  mortgage,  or  such 
an  obligation,  or  such  a  transfer  is  made  to  more  persons  than  one, 
jointly,  and  not  in  shares,  the  mortgage  money,  or  other  money,  or 
money's  worth  for  the  time  being  due  to  those  persons  on  the  mort- 
gage or  obligation,  shall  be  deemed  to  be  and  remain  money  or 
money's  worth  belonging  to  those  persons  on  a  joint  account  as, 
between  them  and  the  mortgagor  or  obligor  ;  and  the  receipt  in 
writing  of  the  survivors  or  last  survivor  of  them,  or  of  the  personal 
represeQtatives  of  the  last  survivor,  shall  be  a  complete  discharge 
for  all  money  or  money's  worth  for  the  time  being  due,  notwith- 
standing any  notice  to  the  j^ayer  of  a  severance  of  the  joint  account. 

(2)  This  section  applies  only  if  and  as  far  as  a  contrary  inten- 
tion is  not  expressed  in  the  mortgage,  or  obligation,  or  transfer,  and 
shall  have  effect  subject  to  the  terms  of  the  mortgage,  or  obligation, 
or  transfer,  and  to  the  provisions  therein  contained. 

(3)  This  section  applies  only  to  a  mortgage  or  obligation  or 
transfer  made  after  the  commencement  (from  and  immediately  after 
the  31st  December,  1881)  of  this  Act. 

If  joint  mortgagees  purchase  or  foreclose  the  equity  of  redemp- 
tion, they  will  be  held,  in  equity,  tenants  in  common,  "because  their 
intent  is  presumed  to  be  so  :"  Rigdeny.  Vallier,  2  Ves.  258.  See 
also  Edwards  v.  Fashion,  Prec.  Ch.  332  ;  Aveling  v.  Knijje,  19  Yes. 
444  ;  and  the  comments  therein  of  Sir  Wm.  Grant,  M.  R.,  on 
Edwards  v.  Fashion. 

Although  payment  of  a  bond  debt  to  one  of  two  trustees  form- 
erly bouad  both  at  law  (Husband  v.  Davis,  10  C.  B.  645),  in  case 
of  a  mortgage  to  two  a  payment  to  one  would  not  discharge  the 
estate  in  equity  :  Hall  v.  Franck,  11  Beav.  519  ;  Wigglesicorth  v. 
Wigglesicorth,  16  Beav.  269  ;  Matson  v.  Dennis,  4  De  G.  J.  &  Sm. 
345  ;  reversing  lb.  12  W.  R.  (V.-C.  S.)  596  ;  and  now  under  the 
284 


LAKE  V.  CRADDOCK.  *  226 

Judicature  Act  (36  &  87  Vict.  c.  00,  s.  25,  Hubs.    11)  the  equitable 
rule  will  [)rov!ul. 

*  Another  rule  laid  down  by  the  Master  of  the  Rolls  in  [  *  225  ] 
Lake  v.  Gibson  is,  that,  in  all  cases  of  a  joint  undertaking 
or  partnership,  either  in  trade  or  in  any  other  dealinjr,  two  or  more 
persons  who  make  a  joint  purchase  will  be  considered  in  equity  as 
tenants  in  common,  or  the  survivors  as  trustees  for  the  rejjresenta- 
tives  of  those  who  are  dead.  This  was  the  ground  of  the  decision 
in  Lake  v.  Gibson,  or  Lake  v.  Craddock,  which  shows  that  a  joint 
speculation  in  improving  land,  on  a  hazard  of  profit  and  loss,  is 
treated  in  a  court  of  equity,  as  in  the  nature  of  merchandise,  and 
the  jus  accrescendi  is  not  allowed.  See  In  re  Thomas  Ryan,  3  I.  R. 
Eq.  222,  232. 

In  favour  of  merchandise  it  is  well  known  that  an  exception  to 
the  rule  of  survivorship  has  been  long  established.  It  is  thus  stat- 
ed in  Co.  Litt.  182,  a: — "An  exception  is  to  be  made  of  two  joint 
merchants:  for  the  wares,  merchandises,  debts,  or  duties  tLat  they 
have  as  joint  merchants  or  partners  shall  not  survive,  but  shall  go 
to  the  executors  of  him  that  deceaseth;  and  this  ispe?-  legem  mer- 
catoriam,  which  (as  hath  been  said)  is  part  of  the  laws  of  this  realm, 
for  the  advancement  and  continuance  of  commerce  and  trade,  which 
is  pro  bono  publico;  for  the  rule  is  that  jus  accrescendi  inter  mer- 
catores  pro  beneficio  commercii  locum  no7i  habeV^  And  see  Nelson 
V.  Bealbu,  30  Beav.  472;  S.  C,  affirmed  4  De  G.  F.  &  J.  321;  Am- 
bler V.  Bolton,  14  L.  R.  Eq.  427;  M' Clean  v.  Kennard,  9  L.  R.  Ch. 
App.  330. 

The  exception  in  favour  of  merchants  was  afterwards  extended 
to  all  traders;  and  courts  of  equity  as  before  mentioned  have  ex- 
tended it  to  the  analogous  cases  of  real  property  purchased  for  a 
joint  undertaking  or  partnership  in  trade,  or  in  any  other  dealing. 
It  has  been  remarked  by  Sir  James  Wigram,  V.-C,  that  the  conse- 
quences of  the  admission  of  the  partnership  contract  were  carried 
to  a  great  length  in  Lake  v.  Craddock;  "  for  one  of  the  five  original 
contractors,"  observed  his  Honor,  "who  had  retired  for  nearly 
thirty  years,  was  held  bound  by  a  subsequent  contract,  made  by  the 
other  four,  for  the  purchase  of  other  lands  in  aid  of  the  original  de- 
sign;" 5  Hare,  384. 

Upon  the  same  principle  it  has  been  held  with  some  conflict  of 
opinion,  that  if  two  persons  take  a  lease  of  land  for  the  purpose  of 
farming  it  in  partnership,  at  any  rate  where  the  lease  is  merely  ac- 
cessory to  the  partnership,  the  partners  will  be  considered  in  equity 
as  tenants  in  common  not  only  of  the  stock  of  the  farm  but  of  the 
lease,  and  the  survivor  of  the  two  consequently  would  be  trustee  for 
the  personal  representatives  of  the  deceased  partner.  See  Jeffereys 
V.  Small,  1  Vern.  217.  There  two  persons  having  jointly 
*  stocked  a  farm,  and  occupied  it  as  joint  tenants,  the  bill  [  *  220] 
was  to  be  relieved  against  survivorship,  one  of  them  be- 
ing dead,  Lord  Keeper  North  was  clearly  of  opinion  that  the  plain- 

285 


•^'  227  LAKE  V.  CRADDOCK. 

tiff  ought  (o  bo  relieved,  and  said  that,  if  the  farm  had  been  taken 
jointly  by  them,  and  proved  a  good  bargain,  then  the  survivor  should 
have  ihe  benefit  of  it;  but  as  to  a  stock  employed  in  the  way  of  trade, 
that  should  in  no  case  siu'vive.  That  the  custom  of  merchants  was 
extended  to  all  traders,  to  exclude  survivorship:  and  though  it  was 
common  for  traders  in  articles  of  co-partnership  to  provide  against 
survivorship,  yet  that  was  more  than  was  necessary,  and  he  said,  he 
took  the  distinction  to  be,  where  two  became  joint  tenants,  or  jointly 
interested  in  a  thing  by  way  of  gift  or  the  like,  there  the  same  shall 
be  subject  to  all  the  consequences  of  law;  but  as  to  a  joint  under- 
taking in  the  way  of  trade  or  the  like,  it  is  otherwise;  and  decreed 
for  the  plaintiff  accordingly. 

Lord -EMon,  in  commenting  upon  this  case,  observed: — ^^  Jeffer- 
eys  v.  Small  has  been  approved,  with  some  distinctions,  in  subse- 
quent cases.  It  was  held,  in  that  case,  that,  if  two  take  a  lease  of  a 
farm  jointly,  the  lease  shall  survive,  but  the  stock  on  the  farm, 
though  occupied  jointly,  shall  not  survive.  I  have  a  note  of  my 
own  of  a  case  of  Elliot  v.  Broum,  upon  the  25th  of  July,  1791,  in 
which  another  distinction  was  made  by  Lord  Thurloiv,  that  the  law, 
with  reference  to  the  stock,  would  be  the  same  as  to  lease  provided 
the  lease  was  taken  onlij  upon  the  same  purpose  as  the  stock,  and  the 
lease  was  only  the  substratum;  and  Lake  v.  Gibson  was  referred  to. 
The  observation  upon  that  was,  that  the  purchase  of  the  land  was 
made  to  the  intent  that  they  might  become  partners  in  the  improve- 
ment; that  it  was  only  the  substratum  for  an  adventure,  in  the  pro- 
fits of  which  it  was  previously  intended  they  should  be  concerned: 
Jackson  v.  Jackson,  9  Ves.  596.  In  Elliot  v.  Broivn  (since  reported, 
3  Swanst.  489),  there  Avas  a  lease  of  a  farm  to  two  partners;  one 
partner  dying,  the  other  agreed  to  a  division  of  stock  with  the  rep- 
resentatives of  the  deceased  partner,  but  insisted  on  holding  the 
lease  by  survivorship;  Lord  Thurlow,  however,  thought  the  lease 
was  accessory  to  the  trade  in  which  the  parties  were  embarked,  and 
granted  an  injunction  to  restrain  the  surviving  partner  from  pro- 
ceeding by  ejectment  to  obtain  possession  of  the  farm."  From 
Lord  Colchester's  MSS.     See  also  1  Vern.  217,  n.  (3). 

So,  where  two  persons  took  a  building  lease,  and  laid  out  money 
in  erecting  houses.  Lord  Thurlow  held  them  to  be  partners  in  re- 
spect of  this  property;  and  the  survivor  was  decreed  to  be 
[  *  227  ]  a  trustee  of  a  moiety  for  the  representatives  of  *  the  de- 
ceased partner.  "  Though,"  observed  his  Lordship,  "  if 
two  persons  take  a  farm,  the  lease  will  survive,  yet  has  it  not  been 
determined  that,  if  they  lay  out  money  jointly  upon  it,  that  turns 
round  the  estate  at  law,  and  makes  it  equitable?  I  allude  to  the 
case  of  a  joint  lease  taken  or  a  fee  purchased  to  carry  on  a  joint 
trade;  the  object  being  to  carry  on  the  trade,  the  Court  thought  it 
would  convert  the  joint  property  for  the  purposes  of  trade,  and 
making  a  common  advantage.  I  am  now  clearly  of  opinion,  that, 
if  partners  purchase  leasehold  or  freehold  to  cany  on  trade,  that 
286 


LAKE  V.  CRADDOCK.  *  228 

will  carry  with  it  all  ihoso  circnmstancos."'     Lyster  v.  Dnlkuid,  1 
Ves.  Jun.  481.      See  also  Crawnhay  v.  Maule,  1  Swanst.  508. 

A  deceased  partner,  may,  however,  have  so  conducted  himself  by 
repiadiating  a  contrHct,  as  for  instance,  a  lease  of  ground  for  a 
l)uilding  speculation,  as  to  preclude  his  executors  from  claiming  a 
share  in  the  lease:  Reilly  v.  Walsh,  11  Ir.  Eq.  Hep.  22.  And  see 
Norway  v.  lioive,  19  Ves.  143;  C'lemenfs  v.  Hall,  24  Beav.  333. 

And  though  the  conveyance  of  real  estate  be  taken  in  the  name 
of  one  of  the  partners,  if  it  has  been  purchased  with  partnership 
funds,  it  will  bo  part  of  the  partnership  property:  Smith  v.  Smith, 
5  Ves.  1 93 ;  Clegg  v.  Fishicick,  1  Mac.  &  G.  294.  And  see  Titbits 
V.  FhilUps,  10  Hare,  355. 

The  question  whether  property  purchased  with  partnership  assets 
is  the  joint  or  separate  property  of  the  partners  depends  upon  the 
circumstances  under  which  and  the  purposes  for  which  it  was 
bought.  Thus,  in  the  Bank  of  England  Case,  3  De  G.  F.  &  Jo. 
645,  one  of  two  partners  carrying  on  the  business  of  leather  factor 
bought  lands  for  the  purpose  of  erecting  a  residence  on  part  of  it, 
and  selling  the  remainder  to  a  railway  company.  He  offered  a 
share  to  his  partner,  who  was  also  desirous  of  building  a  house  oat 
of  town  for  his  residence.  The  offer  v/as  accepted,  and  the  purchase 
money  paid  out  of  the  partnership  assets;  but  the  conveyance  was 
to  the  partners  in  separate  moieties,  each  of  which  was  conveyed  to 
the  usual  uses  to  bar  dower.  The  partners  at  their  individual  ex- 
pense built  houses  upon  portions  of  the  land  set  apart  for  the  pur- 
pose, but  the  other  expenses  relating  to  the  land  were  paid  out  of 
the  partnership  assets.  It  was  held  by  the  Lords  Justices  that  the 
whole  of  the  land  constituted  joint  estate.  "<Jnestions  of  this 
nature,"  said  Lord  Justice  Turner,  "  depend,  as  I  apprehend,  gen- 
erally, if  not  universally,  upon  the  circumstances.  It  cannot,  I 
think,  be  laid  down  as  an  universal  rule,  that  when  lands  are  bought 
by  partners  in  trade,  and  are  paid  for  out  of  the  partner- 
ship assets,  they  of  necessity  become  part  of  the  *  joint  [  *  228  ] 
estate  of  the  partners.  There  are  different  purposes  for 
which  the  lands  may  have  been  bought.  They  may  have  been 
bought  for  the  purpose  of  being  used  and  employed  in  the  trade, 
but  for  the  purpose  of  a  mere  speculation  on  account  of  the  part- 
nership, fori  know  nothing  which,  can  prevent  partners  from  specu- 
lating in  land,  if  they  think  proper  to  do  so.  as  fi'eely  as  they  may 
speculate  in  mere  articles  of  commerce,  though  foreign  to  their  trade. 
Again,  they  may  have  been  bought  without  reference  to  the  pur- 
poses of  the  trade  or  the  benefit  of  the  partnership,  with  the  inten- 
tion of  withdrawing  from  the  trade  the  amount  employed  in  the 
purchase,  and  converting  that  amount  into  separate  property  of  the 
partners,  or  they  may  have  been  bought  on  account  of  one  or  more 
of  the  partners,  he  or  they  becoming  debtors  to  the  partnership  for 
the  amount  laid  out  in  the  purchase.  The  form  of  tlie  conveyance 
in  these  cases  does  not  settle  the  question,  for  in  whatever  form  the 

287 


*  229  LAKE  V.  CRABDOCK. 

conveyance  maybe,  there  maybe  a  trust  of  the  land  which  may  follow 
the  money,  liable,  however,  as  other  trusts  are,  to  be  rebutted  by 
evidence.  Where  land  purchased  is  not  merely  paid  for  out  of  the 
partnership  assets,  but  is  bought  for  the  purpose  of  being  used  and 
employed  in  the  partnership  trade,  it  is  scarcely  possible  to 
conceive  a  case  in  which  there  could  bo  sufficient  evidence  to  rebut 
the  trust,  and  accordingly  in  these  cases  we  find  the  decisions  almost 
if  not  entirely  uniform — that  the  purchased  land  forms  part  of  the 
joint  estate  of  the  partnership;  but  where  the  land  is  not  purchased 
for  those  purposes,  the  question  becomes  more  open,  and  we  have 
to  consider  whether  the  circumstances  attending  the  purchase  show 
that  it  was  made  on  account  of  the  partnership,  or  of  any  one  or 
more  of  them  individually,  in  whose  name  the  land  may  have  been 
bought.  ...  I  am  of  opinion  that,  looking  at  the  case  with 
reference  to  the  whole  of  the  estate,  this  purchase  must  be  taken  to 
have  been  made  by  way  of  speculation  on  account  of  the  partner- 
ship, and  that  the  petition  of  the  Bank  of  England  accordingly  fails, 
and  must  be  dismissed." 

Where  property  is  not  purchased  by  persons  for  partnership  pur- 
poses, but  is  devised  to  them  as  joint  tenants,  although  they  make 
use  of  it  for  partnership  purposes,  they  will  not  be  held  tenants  in 
common  in  equity,  unless  by  express  agreement,  or  by  their  course 
of  dealing  with  it  for  a  long  period,  it  may  be  inferred  that  they 
meant  to  sever  the  joint  tenancy.  Jackson  v.  Jackson,  9  Yes.  591. 
See  also  Broivn  v.  Oakshot,  24  Beav.  254;  Ward  v.  Ward,  6  L.  K. 
Ch.  App.  789.  So  in  Morris  v.  Barrett,  3  Y.  &  J.  384,  in 
[  *  229  ]  the  Exchequer,  a  testator  devised  and  *  bequeathed  the 
residue  of  his  real  and  personal  estate  to  his  two  sons, 
their  heirs,  executors,  and  administrators.  The  two  sons,  after 
their  fathers  death,  during  the  period  of  twenty  years,  carried  on 
the  business  of  farmers  with  such  estate,  and  kept  the  monies  aris- 
ing therefrom  in  one  common  stock,  and,  with  part  of  such  moneys, 
purchased  other  estates  in  the  name  of  one  of  them,  but  never  in 
any  manner  entered  into  any  agreement  respecting  such  farming 
business,  or  ever  accounted  with  each  other.  One  of  the  brothers 
died;  and  upon  a  bill  being  filed  by  the  legatees  and  persons  bene- 
ficially entitled  under  his  will,  it  was  admitted,  by  the  counsel  of 
the  surviving  brother,  that  the  estates  purchased  with  the  profits  of 
the  business  and  the  partnership  stock  were  held  by  the  brothers 
as  tenants  in  common,  but  they  contended  that  the  leasehold  estates 
and  the  personal  estate  which  the  father  bequeathed  to  them  were 
held  by  them  as  joint  tenants;  that  where  real  estates  conveyed  to 
persons  as  joint  tenants,  had  been  adjudged  to  have  been  held  by 
them  as  tenants  in  common,  the  estates  had  been  purchased  ex- 
pressly for  the  purpose  of  a  partnership,  or  for  a  joint  speculation, 
as  in  Lake  v.  Craddock,  and  that  no  case  could  be  cited  in  which 
real  estate  devised  had  been  converted  from  an  estate  in  joint  ten- 
ancy to  a  tenancy  in  common:  Alexander,  C.  B.,  held  that  the 
288 


LAKE  V.  CRADDOCK.  *  230 

brothers  remained  joint  tenants  of  all  the  property  that  passed  by 
the  will  of  their  father,  but  were  tenants  in  common  of  the  after- 
purchased  lands. 

A  partnership  agreement  between  A..  &  B.  that  they  should  be 
jointly  interested  in  a  speculation  for  buying,  improving  for  sale, 
and  selling  lands,  may  bo  proved  without  being  evidenced  by  any 
writing  signed  by,  or  by  the  authority  of,  the  •i>arty  to  be  charged 
therewith,  within  the  Statute  of  Frauds;  and  such  an  agreenient 
being  proved,  A.  or  B.  may  establish  his  interest  in  the  land,  the 
subject  of  the  partnership,  without  such  interest  being  evidenced 
by  any  such  writing.  See  Dale  v.  Hamilton,  5  Hare,  309;  S.  C,  2 
Ph.  2G6;  and  Darby  v.  Darby,  3  Drew.  495;  but  see  and  consider 
Caddickv.  Skidmore,  2  De  G.  &  Jo.  52;  Smith  v.  Matthews,  3  De 
G.  F.  &  Jo.  139,  151. 

Conversion  of  real  estate  held  by  partners  for  partnership  pur- 
poses.]— AN'here  partners  hold  real  estate  for  paitnership  purposes, 
a  question  arises,  which  was  not  decided  in  Tjike  v.  Gibson,  and 
Lake  v.  Craddock  (in  which  case  the  defendant  Craddock,  it  will  be 
observed,  was  both  heir-at-law  and  executor  of  his  father),  whether 
the  real  estate  is  not,  even  in  the  absence  of  any  expressed 
*  intention  of  the  partners,  so  absolutely  converted  into  [*230] 
personalty  as  to  be  held  by  the  surviving  partners,  not  in 
trust  for  the  heir-at-law,  but  for  the  personal  representatives,  of  the 
deceased  partner. 

It  is  clearly  settled,  that  where  real  estate  is  purchased  ioi,th  j^art- 
nership  capital,  for  the  purposes  of  partnership  trade,  it  will,  in  the 
absence  of  any  express  agreement,  be  considered  as  absolutely  con- 
verted into  personalty;  and,  upon  the  death  of  one  of  the  partners, 
his  share  will  not  go  to  his  heir-at-law,  nor  be  liable  to  dower,  but 
will  belong  to  his  personal  representatives.  See  Tmnisend  v.  De- 
vanes,  1  Mont,  on  Partnership,  Append.  97;  1  Rop.  H.  &  W.,  Jac. 
ed.  p.  346;  Selkrig  v.  Davies,  2  Dow  231.  So,  in  Phillips  v.  Phil- 
lips, 1  My.  &  K.  649,  Sir  J.  Leach,  M.  R.,  held,  that  freehold  and 
copyhold  public  houses,  purchased  with  partnership  capital,  and 
conveyed  to  the  two  partners  and  their  heirs,  for  the  purposes  of  the 
partnership  trade,  were  to  be  considered  as  personal  estate  generally, 
and  not  only  for  the  payment  of  the  partnership  debts.  "  I  con- 
fess," observed  his  Honor,  "I  have  for  some  years,  notwithstanding 
older  authorities,  considered  it  to  be  settled  that  all  property,  what- 
ever might  be  its  n'Ainr  e,  jmrchased  icith  partnership  capital  fertile 
purposes  of  the  partnership  trade,  continued  to  be  partnership  capi- 
tal, and  to  have,  to  every  intent,  the  quality  of  personal  estate;  and 
in  the  case  of  Fereday  v.  Wightwick,  1  Russ.  &  My.  45,  I  had  no 
intention  to  confine  the  principle  to  the  payment  of  the  partnership 
demands.  Lord  Eldon  has  certainly,  upon  several  occasions,  ex- 
pressed such  an  opinion.  The  case  of  Toicnsend  v.  Devaynes  is  a 
clear  decision  to  that  effect,  and  general  convenience  requires  that 

19   WHITE  ON   EQUITY.  289 


*  231  LAKE  V.  CRADDOCK. 

this  principle  should  be  adhered  to."  This  decision  has  been  fol- 
lowed in  Broom  v.  Broom,  3  My.  &  K.  443;  Morris  v.  Kearsley,  2  Y. 
&  C.  Excheq.  Ca.  140;  Bligh  v.  Brent,  2  Y.  &  C.  Excheq.  Ca.  268; 
Houghton  v.  Houghton,  11  Sim.  491.  In  re  Thomas  Ryan,  3  I.  R. 
Eq.  232. 

It  has,  however,  been  held  in  some  cases  that  where  real  estate 
belonged  to  the  partners  at  the  time  of  their  entering  into  partner- 
ship, or  has  been  subsequently  acquired  by  them  out  of  their  own 
private  moneys,  or  by  gift,  conversion  will  not,  unless  by  express 
agreement,  take  place,  although  the  real  estate  has  been  used  for 
the  partnership  purposes  in  trade.  See  Thornton  \.  Dixon,  3  Bro. 
C  C.  199;  Balmain  v.  Shore,  9  Ves.  500:  Cookson  v.  Cookson,  8 
Sim.  529;  Bisset  on  Partnership,  50. 
In  more  recent  cases,  proceeding  upon  a  broader  principle,it  has  been 

laid  down  that  where  real  property  has  been  substantially  in- 
[  *  231  ]  volved  in  a  business  in  trade,  *it  is  part  of  the  partnership 

property,  and  therefore  personal  estate,  and  that  it  is  im- 
material how  it  may  have  been  acquired  by  the  partners,  whether 
by  descent  or  devise.  See  Waterer  v.  Waterer,  15  L.  R.  Eq.  40-2. 
There  J.  Waterer  was  seised  of  real  estate,  upon  part  of  which  he 
carried  on  the  business  of  a  nurseryman,  under  the  name  of  J. 
Waterer  &  Sons.  He  was  assisted  by  his  three  sons  in  his  busi- 
ness, but  they  were  not  in  reality  partners.  J.  W^aterer  having  con- 
tracted for  the  purchase  of  a  house  and  farm  for  the  purpose  of  his 
business,  died  on  the  2nd  November,  18GS,  having  by  his  Avill  de- 
vised his  real  estate,  and  his  residuary  personal  estate  to  his  three 
sons  as  tenants  in  common.  After  his  death,  the  contract  for  the 
purchase  of  the  farm  was  carried  into  effect  by  his  three  sons,  to 
whom  the  land  was  conveyed  as  tenants  in  common.  For  a  short 
time  the  business  was  carried  on  by  the  three  sons  under  the  same 
style  as  before.  It  appears  that  the  residuary  real  and  personal 
estate  of  the  testator  (except  invested  property)  was  employed  in 
the  business.  In  April,  1869,  Michael,  one  of  the  sons,  retired  from 
the  partnership,  and  the  two  others  purchased  his  one-third  share 
in  the  residuary  and  real  estate,  and  of  the  good-will  in  the  busi- 
ness, for  a  sum  which  was  paid  for  partly  out  of  the  estate,  and 
partly  out  of  moneys  borrowed  on  the  land.  The  two  continuing 
partners  carried  on  the  business  of  nurserymen  under  the  old  style, 
upon  the  same  land  as  their  father,  and  also  on  the  purchased  land. 
The  share  of  Michael  was  purchased  only  in  order  to  enable  the 
other  two  brothers  to  carry  on  the  business.  On  the  4th  of  Octo- 
ber, 1871,  one  of  the  partners  died  intestate, 'leaving  a  widow  and 
children.  It  was  held  by  James,  L.  J.,  sitting  for  Wickefis,  V.-C, 
that  both  the  devised  and  the  purchased  land  employed  in  the  busi- 
ness was  converted  into  personalty.  "I  am  of  opinion,"  said  his 
Lordship,  "that  this  case  is  governed  by  that  class  of  cases  in  which 
Lord  Eldon  said  that  where  property  became  involved  in  partner- 
ship dealings,  it  must  be  regarded  as  partnership  property.  It 
290 


LAKE  V.  CRADDOCK.  *  232 

seems  to  mo  immatprial  liow  it  may  have  been  acquired  by  the  two 
surviviug  partner's,  wliotlier  V)y  descent  or  devise,  if,  in  fact,  it  was 
substantially  involved  in  the  business.  If  instead  of  Michael  sell- 
injTj  his  undivided  third  part,  there  had  been  a  partition  beforehand, 
and  then  a  purchase  by  the  other  partners  of  his  allotment,  it  would 
have  been  impossible  to  say  thai  the  freehold  so  bought  to  carry  on 
the  business  was  not  withiu  the  authorities.  They  buy  it,  not  as 
an  undivided  third  only,  but  in  one  lump,  for  one  lump 
sum,  including  the  good-will,  *  therefore  it  was,  in  fact,  a  [  *  232  ] 
purchase  of  land  and  business  altogether,  by  the  continu- 
ing partners  jointly,  for  the  purpose  of  the  business.  Under  those 
circumstances,  I  think  they  must  each  be  deemed  to  have  irrevoca- 
bly appropriated  each  of  them  his  share  in  the  land  to  the  partner- 
ship purposes.  A  nursery  gardener's  business  is  probably  one 
above  all  others  where  men  would  act  as  these  gentlemen  appear  to 
have  done.  They  necessarily  appropriated  the  soil  itself  for  gar- 
dening purposes,  which  could  not  bo  can-ied  on  without  it.  It  is, 
in  fact,  in  nursery-gardening,  practically  impossible  to  separate  the 
use  of  the  soil  for  the  trei-s  and  shrubs  from  the  trees  and  shrubs 
themselves,  which  are  part  of  the  freehold,  and  at  the  same  time 
constitute  the  substantial  stock-in  trade.  In  my  judgment,  there- 
fore, the  land  used  in  the  trade  is  part  of  the  partnership  property, 
and  therefore  personal  estate.  The  honse  and  land  not  used  for  the 
partnership  business,  but  let  to  tenants,  remain  real  estate."  See 
also  Davies  v.  Games,  12  Ch.  D.  813;  Murtaghx.  Costello,  7  L.  R. 
I.  428. 

The  principle  upon  which  cases  of  this  kind  proceed  appears  to 
be  this:  that  as  a  general  rule,  inherent  to  the  contract  of  partner- 
ship, and  without  any  special  stipulation,  upon  the  dissolution  of 
partnership  all  the  property  of  the  partnership  must  be  sold,  and 
the  proceeds  of  the  sale,  after  discharging  all  the  partnership  debts 
and  liabilities,  must  be  divided  among  the  partners,  according  to 
their  respective  shares  in  the  capital,  and  no  one  partner  has  a  right 
to  insist  that  any  particular  part  or  item  of  the  partnership  pro- 
perty shall  remain  unsold,  and  that  he  shall  retain  his  share  of  it 
in  specie.  It  follows  then  that  any  real  property  which.has  become 
the  property  of  the  partnership  becomes,  by  force  of  the  partner- 
ship contract,  converted  into  personalty,  and  that  not  merely  as 
between  the  partners  to  the  extent  of  discharging  the  partnership 
debts,  but  as  between  the  real  and  personal  representatives  of  de- 
ceased partners.     See  Darby  v.  Darby,  3  Drew.  495,  503,  506. 

Where,  however,  real  estate  was  purchased  for  the  purposes  of  a 
partnership  in  trade,  and  paid  for  out  of  the  partnership  capital, 
but  upon  an  agreement  between  the  partners,  that  it  was  to  be  the 
separate  property  of  one  of  them,  who  took  a  conveyance  of  it  in 
his  own  name.  Lord  Eldon  held,  that  he  was  debtor  to  the  partner- 
ship for  so  much  money  as  he  borrowed,  and  that  the  property  not 

291 


*  234  LAKE  V.  CRADDOCK. 

beino-  partnership  property,  his  wife  was  entitled  to  dower  of  the 
whole.     Smith  v.  Smith,  5  Yes.  193. 

And  where  real  estate  ia  purchased  by  partners  out  of 
[  *  233  ]  the  partnership  capital,  but  not  for  *  the  purposes  of  the 
partnership  in  trade,  it  will  not,  it  seems,  be  converted  into 
personalty.  See  Bell  v.  Phyn,  7  Ves.  453;  Randall  v.  Randall,  T 
Sim.  271;  Steward  v.  Blakeivay,  G  L.  R.  Eq.  479;  4  L.  K,  Ch.  App. 
603. 

If,  however,  the  owners  of  real  estate,  upon  entering  into  j)art- 
nership,  direct,  or  agree  that  it  shall  be  sold  upon  the  death  of  one? 
of  them,  it  will  be  held  to  be  absolutely  converted  into  personalty, 
and  will  go  to  the  personal  representative,  and  not  to  the  heir  of  a 
deceased  partner.  See  Ripley  v.  Waterworth,  7  Ves.  425;  Thornton 
V.  Dixon,  3  Bro.  C.  C.  199.  In  the  recent  case  of  Essex  v.  Essex, 
20  Beav.  442,  two  persons  seised  of  freeholds  agreed  to  carry  on 
business  in  partnership  upon  the  premises  for  fourteen  years,  and 
that  if  either  died  during  that  term,  the  survivor  should  purchase 
the  freeholds  at  a  stated  price.  The  fourteen  years  having  expired, 
they  by  parol  agreement  continued  the  partnership  "on  the  old 
terms;"  one  of  them  afterwards  died  intestate.  It  was  held  by  Sir 
J.  Romilly,  M.  R.,  that  the  stipulation  as  to  purchase  was  binding, 
and  that  the  freeholds  were  converted  into  personalty,  and  did  not 
pass  to  the  heir. 

The  share  of  a  deceased  partner  in  real  estate  purchased  with 
partnership  capital  and  used  for  partnership  purposes  in  trade  is 
now,  it  seems,  held  to  be  converted  into  personalty,  not  only  as  be- 
tween the  partners  and  the  real  and  personal  representatives  of  a 
deceased  partner — but  also  for  fiscal  purposes,  and  that  the  Crown 
is  entitled  to  the  benefit  of  such  equitable  conversion,  and  can  claim 
legacy  and  probate  duty  in  respect  of  the  property  which  at  the 
death  of  the  partner  was  existing  as  real  estate.  See  Forbes  v. 
Steven,  10  L.  R.  Eq.  178,  189,  where  it  was  held  by  James,  V.-C, 
(overruling  the  law  supposed  to  have  been  established  in  distance 
V.  Bradshaw,  4  Hare,  315),  that  legacy  duty  was  payable  upon  a 
share  of  a  deceased  partner — a  domiciled  Englishman,  in  the  pro- 
ceeds of  freehold  property  in  Bombay  used  for  the  purposes  of  the 
partnership,  and  forming  a  partnership  asset,  and  the  reasoning 
upon  which  the  decision  proceeded  is  equally  applicable  to  show 
that  it  was  liable  to  probate  duty.  See  also  Attorney -General  v. 
Brunning,  8  Ho.  Lo,  Ca.,  243;  Attorney -General  v.  Lomas,  QJj.  R. 
Exch.  29,  34;  Attorney  General  v.  Hubbuck,  10  Q.  B.  D.  488;  13 
Q.  B.  D.  275.  And  Hanson  on  the  Prob.  Leg.  and  Succ.  Duty  Acts, 
pp.  148—155,  3rd  ed.     But  see  Dart,  V.  &  P.  925,  n.  5th  ed. 

But  real  estate,  acquired  by  partners  for  the  purposes  of  their 
business,  may  be  dealt  with  by  them  in  the  conveyances  in  such  a 

way  as  to  prevent  this  result,  by  showing  that  conversion 
[  *  234  ]  into  personalty  was  not  intended,  as  *  where,  for  instance, 

they  procure  it  to  be  conveyed  to  them  in  equal  undi- 
292 


LAKE  V.  CRADDOCK.  *  235 

vided  shares,  distance  v.  Bradshaw,  4  Hare,  315.  See  also  the  re- 
luarks  iu  Hanson  on  the  Prob.  Leg.  and  Succ.  Duty  Acts,  j)p.  G, 
148,  3rd  ed. 

And  it  seems  that  conversion  will  take  place  not  only  where  real 
property  is  acquired  for  the  purposes  of  partnership  in  trade,  but 
also  where  it  is  acquired  with  i)artnership  funds  for  the  puri)ose  of 
re-sale  upon  a  speculation  not  properly  coming  under  the  denomi- 
nation of  trade.  Thus,  iu  Darby  v.  Darby,  3  Drew,  495,  where  two 
persons  on  a  joint  speculation  with  their  joint  moneys,  purchased 
land  for  the  purpose  of  laying  it  out  in  building  lots,  and  re-selling 
it  at  their  joint  protit  or  loss,  it  was  held  by  Sir  R.  T.  Kindersley, 
V.-C,  that  the  land  was  converted,  out  and  out,  and  that  the  share 
of  a  deceased  partner  in  part  of  the  unrealized  real  estate  passed 
to  his  personal  representatives.  "The  very  intention  of  the  part- 
nership," said  his  Honor,  "was  to  buy  land  to  re  sell  it.  That  is 
their  very  contract;  and,  without  selling  the  land  again  there  would 
be  no  partnership  business, — the  partnership  was  for  the  purpose  of 
buying  land  to  parcel  it  out  in  plots,  and  to  sell  them  again;  and 
each  partner  had  a  right  to  say  he  would  have  that  contract  carried 
out.  We  have  here  what  Lord  Tliurloiu  wanted  in  Thornton,  v. 
Dixon  (3  Bro.  C.  C  199) — an  actual  contract  that  the  land  shall  be 
sold." 

Where,  as  in  the  principal  case,  lands  are  held  for  partnership 
purposes,  that  is  to  say,  for  employment  for  some  purposes  which 
may  produce  a  return  in  the  shape  of  profits,  so  as  to  add  to  its 
value,  the  joint  property  will  bo  liable  to  repay  the  advances  of  the 
various  partners  before  any  division  can  take  place  (21  Beav.  526); 
but  this  is  not  the  case  where  persons  are  mere  joint  owners  of 
lands.  Thus,  in  Kay  v.  Johnston,  21  Beav.  536,  the  plaintiff  and 
defendant  were  joint  owners  of  a  house,  and  the  defendant  had  laid 
out,  in  improving  and  decorating  it,  moneys  he  had  obtained  from 
the  plaintiff,  it  was  held  by  Sir  J.  Kornilly,  M.  R.,  that  the  plain- 
tiff, in  the  absence  of  contract,  had  no  lien  on  the  share  of  the  de- 
fendant in  the  house  for  the  amount  so  laid  out. 

The  Reconversio7i  of  partnership  property  into  realty. — Property 
purchased  with  partnership  capital,  for  partnership  purposes  in 
trade,  and  therefore  converted  into  personalty,  may  be  reconverted 
by  the  express  or  implied  agreement  of  the  partners.  Thus,  in 
Rowley  v.  Adams,  7  Beav.  548,  A.  and  B.  purchased  realty  out  of 
their  partnership  assets,  which  was  used  for  their  partnership  pur- 
poses, and  was  in  equity  to  be  considered  as  personalty. 
A  new  '^partnership  was  formed  between  A.,  B.,  and  C.  [  *  235  ] 
The  realty  continued  to  be  used  for  partnership  purposes, 
but  A.  and  B.  stipulated  for  a  rent  to  be  paid  them  by  the  new 
partnership,  composed  of  A.,  B.,  and  C.  A  died.  Lord  Langdale, 
M.  R.,  held,  that  the  property  was  to  be  considered  as  part  of  hia 
real  estate. 

293 


*  235  LAKE  V.  CRADDOCK, 

Where,  however,  land  used  for  partnership  purposes  has  been 
considered  as  converted  into  personalty,  it  is  intimated  by  Mr.  Dart 
to  be  his  opinion,  "that  such  part  of  it  as  belongs  to  a  surviving 
partner  will  remain  personal  estate  as  between  his  roal  and  peisonal 
representatives,  unless  and  until  he  indicates  an  intention  that  it 
shall  be  reconverted  into  realty,  and  that  his  mere  v>'inding-up  and 
discontinuing  the  business  would  probably  be  held  to  have  that 
effect."     Dart,  V.  &  P.  928,  5th  ed.  - 

\_Doctrme  of  Joint  Purchases  Restated. — In  the  United  States 
title  by  joint  tenancy,  has  been  very  much  reduced  in  extent,  and 
the  incident  of  survivorship  is  almost  entirely  destroyed  by  statutes, 
except  in  the  case  of  administrators,  executors,  guardians,  trustees 
and  others,  amongst  whom  such  a  tenancy  is  necessary  for  the  pro- 
per execution  of  their  trustee:  See  4  Kent's  Com.  (11th  Ed.)  396. 

Where  the  obligation  or  right,  instead  of  being  joint,  is  either 
several,  or  joint  and  several,  it  descends  on  a  party's  death  to  his 
executors  or  administrators. 

If  two  persons  who  join  in  a  purchase  and  take  the  title  in  the 
name  of  both  of  them^  a  distinction  is  to  be  observed  between  equal 
and  unequal  contribution.  If  the  contributions  are  unequal  a  trust 
results  to  each  one  of  them  in  proportion  to  the  amount  that  was 
originally  subscribed:  Baumgartner  v.  Guessfeld,  38  Mo.  36;  Case 
t\  Codding,  38Cal.  191;  Don.  Jewell,  18  N.  H.  340;  Jackson  v.  Bak- 
man,  Q.  Wendell,  570.  In  the  case  of  equal  contribution  there  is 
no  presumption  of  a  resulting  trust,  as  each  takes  an  estate  in  joint 
tenancy  and  each  runs  his  life  against  that  of  the  other. 

But  even  where  equal  contributors  take  a  conveyance  in  joint 
tenancy,  collateral  circumstances  may  induce  a  Court  of  Equity  to 
construe  it  a  tenancy  in  Common:  Lewin  on  Trust,  264  (Text 
Book  Series).] 


294 


DYER  V.  DYER.  *  237 


*DYER?).  DYER.  [*236] 


Hov.  20,  21,  and  27,  1788.     In  ike  Exchequer^  before  Lord 

Chief  Baron  Eyre,  Baron  Hotham.,  Baron  Thompson. 

[reported  2  cox,  02.] 

[5.  C,  1  Watk.  Cop.  216.] 

Purchase  in  the  Name  of  a  Son. — Advancement.] — Copyhold  grant- 
ed to  A.  and  B.  his  wife,  and  C.  his  younger  son,  to  take  in  snc- 
cession  for  their  lives  and  the  life  of  the  survivor.  The  jnirchase- 
money  ivas  all  paid  by  A.  C.  is  not  a  trustee  of  his  life-interest 
for  A.;  bat  takes  it  beneficially  as  an  advancement  from  his 
father. — Result iny  trust. 

In  1737,  certain  copyhold  premises,  holden  of  the  manor  of  Heytes- 
bury,  in  the  county  of  Wilts,  were  granted  by  the  lord,  according 
to  the  custom  of  that  manor,  to  Simon  Dyer  (the  plaintiff's  father) 
and  Mary  his  wife,  and  the  defendant  William  his  other  son,  to  take 
in  succession  for  their  lives  and  to  the  longest  liver  of  them.  The 
purchase-money  was  paid  by  Simon  Dyer,  the  father.  He  survived 
his  wife,  and  lived  until  1785,  and  then  died,  having  made  his  will, 
and  thereby  devised  all  his  interest  in  these  copyhold  premises 
(amongst  others)  to  the  plaintiff,  his  younger  son. 

The  present  bill  stated  these  circumstances,  and  insisted  that  the 
whole  purchase-money  being  paid  by  the  father,  although,  by  the 
form  of  the  grant,  the  wife  and  the  defendant  had  the  legal  interest 
in  the  premises  for  their  lives  in  succession,  yet  in  a  court  of  equity 
they  were  but  trustees  for  the  father,  and  the  bill  therefore  prayed 
that  the  plaintiff,  as  devisee  of  the  father,  might  be  quieted  in  the 
possession  of  the  premises  during  the  life  of  the  defendant. 

The  defendant  insisted  that  the  insertion  of  his  name 
*  in  the  grant  operated  as  an  advancement  to  him  from  his  [*237] 
father  to  the  extent  of  the  legal  interest  thereby  given  to 
him.     And  this  was  the  whole  question  in  the  cause. 

295 


*  238  DYER  V.  DYER. 

This  case'  was  very  fully  argued  by  Mr.  Solicitor -General  aad 
Ainge,  for  the  plaintiff;  and  by  Burton  v.  Morris,  for  the  defendant. 
The  following  cases  were  cited,  and  very  particularly  commented 
on: — Smith  v.  Baker,  1  Atk.  385;  Taylor  v.  Taylor,  1  Atk.  386; 
Munima  v.  Mumma,  2  Vern.  19;  Howe  v.  Howe,  1  Vern.  415;  Anon, 
2  Freem.  123;  Benger  v.  Dreiv,  1  P.  "Wms.  781;  Dickenson  v.  Shaw, 
before  the  Lords  Commissioners,  in  1770;  Bedwell  v.  Froome,  before 
Sir  T.  Seivell,  on  the  10th  of  May,  1778;  Roiv  v.  Bowden,  before  Sir 
L.  Kenyon,  sitting  for  the  Lord  Chancellor;  Crisp  v.  Pratt,  Cro.  Car. 
549;  Scroope  v.  Scrooi^e,  1  Ch.  Ca.  21;  Elliot  v.  Elliot,  2  Ch.  Ca.  231; 
Ebrand  v.  Dancer,  Ch.  Ca.  26 ;  Kingdon  v.  Bridges,  2  Vern.  67 ;  Beck 
V.  Andrew,  2  Vern.  120;  Rundle  v.  Bundle,  2  Vern.  264;  Lamplugh 
V.  Lamplugh,  1  P.  Wms,  111;  Stileman  v.  Ashdown,  2  Atk.  477; 
Pole  V.  Pofe,  1  Ves.  76. 

Lord  Chief  Baron  Eyre,  after  directing  the  cause  to  stand  over 
for  a  few  days,  delivered  the  judgment  of  the  Court. 

The  question  between  the  parties  in  this  cause  is,  whether  the 
defendant  is  to  be  considered  as  a  trustee  for  his  father  in  respect 
of  his  succession  to  the  legal  interest  of  the  copyhold  premises  in 
question,  and  whether  the  plaintiff,  as  representative  of  the  father, 
is  now  entitled  to  the  benefit  of  that  trust.  I  intimated  my  opinion 
of  the  question  on  the  hearing  of  the  cause;  and  I  then  indeed  en- 
tertained very  little  doubt  upon  the  rule  of  a  court  of  equity,  as  ap- 
plied to  this  subject;  but  as  so  many  cases  have  been  cited,  some  of 
which  are  not  in  print,  we  thought  it  convenient  to  take  an  oppor- 
tunity of  looking  more  fully  into  them,  in  order  that  the  ground  of 
our  decision  may  be  put  in  as  clear  a  light  as  possible,  especially  in 
a  case  in  which  so  great  a  difference  of  opinion  seems  to 
[*  238  ]  have  prevailed  at  the  bar.  And  I  have  met  *  with  a  case, 
in  addition  to  those  cited,  which  is  that  of  Rumboll  v.  Rum- 
boll  {xv),  on  the  20th  of  April,  1761. 

The  clear  result  of  all  the  cases,  without  a  single  exception,  is, 
that  the  trust  of  a  legal  estate,  ivhether  freehold,  copyhold,  or  lease- 
hold; whether  taken  in  the  names  of  the  purchaser's  and  others  jointly, 
or  in  the  names  of  others  without  that  of  the  purchaser;  ivhether  in 
one  name  or  several;  whetfher  jointly  or  successive,  results  to  the  man 
who  advances  the  purchase-money.  This  is  a  general  proposition, 
supported  by  all  the  cases,  and  there  is  nothing  to  contradict  it;  and 

(w)  Since  reported,  2  Eden,  15. 
296 


DYER  V.  DYER.  *  239 

it  goes  on  a  strict  analogy  to  the  rule  of  the  common  law,  that  where 
a  feoffment  is  made  without  consideration,  the  use  results  to  the 
feoffer.  It  is  the  established  doctrine  of  a  court  of  equity,  that  this 
resulting  trust  may  be  rebutted  by  circumstances  in  evidence. 

The  cases  go  one  step  further,  and  prove  that  tlie  circumstance  of 
one  or  more  of  the  nominees  being  a  child  or  children  of  the  pur- 
chaser, is  to  operate  by  rebutting  the  resulting  trust;  and  it  has  been 
determined  in  so  many  cases,  that  the  nominee,  being  a  child,  shall 
have  such  operation  as  a  circumstance  of  evidence,  that  we  should 
be  disturbing  land-marks  if  we  suffered  either  of  these  propositions 
to  be  called  in  question,  namely,  that  such  circumstance  shall  rebut 
the  resulting  trust,  and  that  it  shall  do  so  as  a  circumstance  of  evi- 
dence. I  think  it  would  have  been  a  njore  simple  doctrine  if  the 
children  had  been  considered  as  purchasers  for  a  valuable  consider- 
ation. Natural  love  and  aff'ection  raised  a  use  at  common  law. 
Surely,  then,  it  will  rebut  a  trust  resulting  to  the  father.  This  way 
of  considering  it  would  have  shut  out  all  the  circumstances  of  evi- 
dence which  have  found  their  way  into  many  of  the  cases,  and  would 
have  prevented  some  very  nice  distinctions,  and  not  very  easy  to  be 
understood.  Considering  it  as  a  circumstance  of  evidence,  there 
must  be  of  course  evidence  admitted  on  the  other  side.  Thus,  it 
was  resolved  into  a  question  of  intent,  which  was  getting  into  a  very 
wide  sea,  without  very  certain  guides. 

*  In  the  most  simple  case  of  all,  which  is  that  of  a  [  *  239  ] 
father  purchasing  in  the  name  of  his  son,  it  is  said  that  this 
shows  that  the  father  intended  an  advancement;  and  therefore,  the 
resulting  trust  is  rebutted;  but  then  a  circumstance  is  added  to 
this,  namely,  that  the  son  happened  to  be  provided  for.  Then  the 
question  is,  did  the  father  intend  to  advance  a  son  already  provided 
for?  Lord  Nottingham  (x)  could  not  get  over  this;  and  he 
ruled,  that  in  such  a  case  the  resulting  trust  was  not  rebutted  ; 
and  in  Pole  v.  Pole,  1  Ves.  76,  Lord  Hardwicke  thought  so  too  ; 
and  yet  the  rule,  in  a  court  of  equity,  as  recognised  in  other  cases, 
is,  that  the  father  is  the  only  judge  as  to  the  question  of  a  son's 
provision;  that  distinction,  therefore,  of  the  son  being  provided 
for  or  not  is  not  very  solidly  taken  or  uniformly  adhered  to  (y).  It 
is  then  said,  that  a  purchase  in  the  name  of  a  son  is  a  prima  facie 

{x)  Grey  r.  Grey.  2  Rwanst,  600;  S.  C,  Finch,  343;  and  see  Elliott  i'.  Elliott, 
2Ch.  Ca.  231;  Llovd  r.  Kead.  1  P.  Wnis.  60A. 

(y)  See  Kediugtou  v.  Kediugtou,  3  Kidg.  190;  Sidmouth  i'.  Sidniouth,  2  Beav. 
456. 

297 


*  240  DYER  V.  DYER. 

advancement  (and,  indeed,  it  seems  difficult  to  put  it  in  any  other 
way).  In  some  of  the  cases,  some  circumstances  have  appeared 
V4'hich  go  pretty  much  against  that  presumption :  as  where  the  father 
has  entered  and  kept  possession  and  taken  the  rents,  or  where  he 
has  surrendered  or  devised  the  estate,  or  where  the  son  has  given 
receipts  in  the  name  of  the  father;  the  answer  given  is,  that  the 
father  took  the  rents  as  guardian  of  his  son.  Now,  would  the  Court 
sustain  a  bill  by  the  son  against  the  father  for  these  rents  ?  I  should 
think  it  pretty  difficult  to  succeed  in  such  a  bill.  As  to  the  surrender 
and  devise,  it  is  answered,  that  these  are  subsequent  acts;  whereas 
the  intention  of  the  father  in  taking  the  purchase  in  the  son's  name 
must  be  proved  by  concomitant  acts;  yet  these  are  pretty  strong 
acts  of  ownership,  and  assert  the  right  and  coincide  with  the  pos- 
session and  enjoyment.  As  to  the  son's  giving  receipts  in  the  name 
of  the  father,  it  is  said  that  the  son  being  under  age,  he  could  not 
give  receipts  in  any  other  manner;  but  X  own  this  reasoning  does 
not  satisfy  me. 

In  the  more  complicated  cases,  where  the  life  of  the  son  is  one  of 

the  lives  to  take  in  succession,  other  distinctions  are  taken. 
[  *  240  ]  If  the  custom  of  the  manor  be,  that  *  the  first  taker  might 

surrender  the  whole  lease,  that  shall  make  the  other  lessees 
trustees  for  him ;  but  this  custom  operates  on  the  legal  estate,  not 
on  the  equitable  interest  ;  and,  therefore,  this  is  not  a  very  solid 
argument.  When  the  lessees  are  to  take  successive,  it  is  said,  that, 
as  the  father  cannot  take  the  whole  in  his  own  name,  but  must  in- 
sert other  names  in  the  lease,  then  the  children  shall  be  trustees  for 
the  father ;  and,  to  be  sure,  if  the  circumstance  of  a  child  being  the 
nominee  is  not  decisive  the  other  way,  there  is  a  great  deal  of  weight 
in  this  observation.  There  may  be  many  prudential  reasons  for  putt- 
ing in  the  life  of  a  child  in  preference  to  that  of  any  other  person;  and 
if  in  that  case  it  is  to  be  collected  from  circumstances  whether  an 
advancement  was  meant,  it  will  be  difficult  to  find  such  as  will 
support  that  idea:  to  be  sure,  taking  the  estate  in  the  name  of  the 
child,  which  the  father  might  have  taken  in  his  own,  affords  a  strong 
argument  of  such  an  intent;  but  where  the  estate  must  necessarily 
be  taken  to  lives  in  succession,  the  inference  is  very  different.  These 
are  difficulties  which  occur  from  considering  the  purchase  in  the 
son's  name  as  a  circumstance  of  evidence  only.  Now,  if  it  were  once 
laid  down  that  the  son  was  to  be  taken  as  a  purchaser  for  a  valuable 
consideration,  all  these  matters  of  presumption  would  be  avoided. 
298 


DYER  V.  DYER.  *  241 

It  must  be  admitted,  that  the  case  of  Dickenson  v.  Shaw  is  a  case 
very  strong  to  support  the  present  plaintiff's  claim.  That  came  on 
in  Chancery  on  the  22nd  of  May,  1770.  A  copyhold  was  granted 
to  three  lives  to  take  in  succession,  the  father,  son,  and  daughter  ; 
the  father  paid  the  tine;  there  was  no  custom  stated;  the  question 
was,  whether  the  daughter  and  her  husband  were  trustees  during 
the  life  of  the  son,  who  survived  the  father.  At  the  time  of  the 
purchase  the  son  was  nine,  and  the  daughter  seven  years  old.  It  ap- 
peared that  the  father  had  leased  the  premises  from  three  years  to 
three  years  to  the  extent  of  nine  years.  On  this  case.  Lords  Commis- 
sioners/5m7/^/te  and  Aston  were  of  opinion  that,  as  the  father 
had  paid  the  purchase-money,  the  children  were  *  trustees  [  *  241] 
for  him.  To  the  note  I  have  of  this  case  it  is  added,  that 
this  determination  was  contrary  to  the  general  opinion  of  the  bar, 
and  also  to  a  case  of  Taylor  v.  Alston  in  this  Court.  In  Dickenson 
V.  Shaw  there  was  some  little  evidence  to  assist  the  idea  of  its 
being  a  trust,  namely,  that  of  the  leases  made  by  the  father;  if  that 
made  an  ingredient  in  the  determination,  then  that  case  is  not 
quite  in  point  to  the  present;  but  I  rather  think  that  the  meaning 
of  the  Court  was,  that  the  burthen  of  proof  lay  on  the  ciiild;  and 
that  the  cases,  which  went  the  other  way,  were  only  those  in  which 
the  estate  was  entirely  purchased  in  the  names  of  the  children;  if 
so,  they  certainly  were  not  quite  correct  in  that  idea,  for  there  had 
been  cases  in  which  the  estates  had  been  taken  in  the  names  of  the 
father  and  son.  I  have  been  favoured  with  a  note  of  Rumboll  v. 
Rumholl  (z)  before  Lord  Keeper  Henley  on  the  20th  of  April,  1761, 
where  a  copyhold  was  taken  for  three  lives  in  succession,  the  father 
and  two  sons;  the  father  paid  the  fine;  and  the  custom  was,  that 
the  first  taker  might  dispose  of  the  whole  estate  (and  his  Lordship 
then  stated  that  case  fully).  Now,  this  case  does  not  amount  to 
more  tha,n  an  opinion  of  Lord  Keeper  Henley;  but  he  agreed  with 
me  in  considering  a  child  as  a  purchaser  for  good  consideration  of 
an  estate  bought  by  the  father  in  his  name,  though  a  trust  would 
result  as  against  a  stranger.  It  has  been  supposed  that  the  case  of 
Taylor  v.  Alston  in  this  Court  denied  the  authority  of  Dickenson  v, 
Shaw.  That  cause  was  heard  before  Lord  Chief  Baron  Smythe, 
myself,  and  Mr.  Baron  Burland,  and  was  the  case  of  an  uncle  pur- 
chasing in  the  names  of  himself  and  a  nephew  and  niece;  it  was  decid- 
ed in  favour  of  the  nephew  and  niece,  not  on  any  general  idea  of  their 

Iz)  2Edenri5^  ' 

299 


*  243  DYER  V.  DYER. 

taking  as  relations,  but  on  the  result  of  much  parol  evidence,  which 
was  admitted  on  both  sides;  and  the  equity  on  the  side  of  the  nom- 
inees was  thought  to  preponderate.  Loi'd  Kenyon  was  in  that  cause, 
and  his  argument  went  solely  on  the  weight  of  the  parol  evidence  ; 

indeed,  as  far  as  the  circumstances  of  the  custom  of  the  first 
[  *  242  ]  taker's  right  to  surrender,  it  was  a  strong  case  in  *  favour 

of  a  trust;  however,  the  Court  determined  the  other  way 
on  the  parol  evidence:  that  case,  therefore,  is  not  material.  Another 
case  has  been  mentioned,  which  is  not  in  print,  and  which  was 
thought  to  be  materially  applicable  to  this  (Bedicell  v.  Froome,  before 
Sir  T.  Sewell);  but  that  was  materially  distinguishable  from  the 
present:  as  far  as  the  general  doctrine  went,  it  went  against  the 
opinion  of  the  Lords  Commissioners.  His  Honor  there  held,  that 
the  copyholds  were  part  of  the  testator's  personal  estate  for  that  it 
was  not  a  purchase  in  the  name  of  the  daughter;  she  was  not  to 
have  the  legal  estate;  it  was  only  a  contract  to  add  the  daughter's 
life  in  a  new  lease  to  be  granted  to  the  father  himself;  there  could 
be  no  question  about  her  being  a  trustee;  for  it  was  as  a  freehold 
in  him  for  his  daughter's  life;  but  in  the  course  of  the  argument, 
his  Honor  stated  the  common  principles  as  applied  to  the  present 
case;  and  ended  by  saying  that,  as  beticeen  father  and  child,  the 
natural  presumption  ivas,  that  a  provision  tvas  meant.  The  anony- 
mous case  in  2  Freem.  123,  corresponds  very  much  with  the  doctrine 
laid  down  by  Sir  T.  Sewell;  and  it  observes,  that  an  advancement 
to  a  child  is  considered  as  done  for  valuable  consideration,  not  only 
against  the  father,  but  against  creditors.  Kingdom  v.  Bridges  is  a 
strong  case  to  this  point:  that  is,  the  valuable  nature  of  the  con- 
sideration arising  on  a  provision  made  for  a  wife  or  for  a  child;  for 
there  the  question  arose  as  against  creditors. 

I  do  not  find  that  there  are  in  print  more  than  three  cases  which 
respect  copyholds,  where  the  grant  is  to  take  successive :  Rundley. 
Rundle,  2  Vern.  264,  which  was  a  case  perfectly  clear;  Benger  v. 
Drew,  1  P.  Wms.  781,  where  the  purchase  was  made  partly  with 
the  wife's  money;  and  Smith  v.  Baker,  1  Atk.  385,  where  the  gen- 
eral doctrine,  as  applied  to  strangers,  was  recognized;  but  the  case 
turned  on  the  question,  whether  the  interest  was  well  devised. 
Therefore,  as  far  as  respects  this  particular  case,  Dickenson  v.  Shaw 
is  the  only  case  quite  in  point;  and  then  the  question  is,  whether 

that  case  is  to  be  abided  by?     With   great  reverence  to 
[  *  243  ]  the  memory   of  *  those  two  judges  who  decided  it,  we 
300 


DYER  V.  DYER.  *  244 

think  that  case  cannot  be  followed;  that  it  has  not  stood  the  test 
of  time  or  the  opinion  of  learned  men;  and  Lord  Kemjon  has 
certainly  intimated  his  opinion  against  it.  On  examination  of  its 
principles,  they  seem  to  rest  on  too  narrow  a  foundation,  namely, 
that  the  inference  of  a  provision  being  intended  did  not  arise,  be- 
cause the  purchase  could  not  have  been  taken  wholly  in  the  name 
of  the  purchaser.  This,  wo  think,  is  not  sufficient  to  turn  the  pre- 
sumption against  the  child.  If  it  is  meant  to  bo  a  trust,  the  })ur- 
chasor  must  show  that  intention  by  a  declaration  of  trust,  and  we  do 
not  think  it  right  to  doubt  whether  an  estate  in  succession  is  to  be 
considered  as  an  advancement  when  a  moiety  of  an  estate  in  pos- 
session certainly  would  be  so.  If  wo  were  to  enter  into  all  the  rea- 
sons that  might  possibly  influence  the  mind  of  the  purchaser,  many 
mio^ht  perhaps  occur  in  every  case  upon  which  it  might  be  argued 
that  an  advancement  was  not  intended;  and  I  own  it  is  not  a  very 
prudent  conduct  of  a  man  just  married  to  tie  up  his  property  for 
one  child,  and  preclude  himself  from  providing  for  the  rest  of  his 
family;  but  this  applies  equally  in  case  of  a  purchase  in  the  name 
of  the  child  only.  Yet  that  case  is  admitted  to  be  an  advancement; 
indeed,  if  anything,  the  latter  case  is  rather  the  strongest,  for  there 
it  must  be  confined  to  one  child  only.  We  think,  therefore,  that 
these  reasons  partake  of  too  great  a  degree  of  refinement,  and  should 
not  prevail  against  a  rule  of  property  which  is  so  well  established 
as  to  become  a  land-mark,  and  which,  whether  right  or  wrong, 
should  be  carried  throughout. 

This  bill  must  therefore  be  dismissed;  but  after  stating  that  the 
only  case  in  point  on  the  subject  is  against  our  present  opinion,  it 
certainly  will  be  proper  to  dismiss  it  without  costs. 


Dyer  v.  Dyer  is  a  leading  case  on  the  doctrine  of  resulting  trusts 
upon  purchases  made  in  the  names  of  strangers,  but  more  especially 
on  the  very  important  exception  to  the  doctrine  where  pur- 
chases  *  are  made,  not  in  the  names  of  strangers,  but  of  [  *  244  ] 
children  or  persons  equally  favoured. 

As  to  purchases  made  in  the  names  of  strangers,  the  Lord 
Chief  Baron  Exjre  in  his  judgment  observes,  "The  clear  result  of 
all  the  cases,  without  a  single  exception,  is,  that  the  trust  of  a  legal 
estate,  whether  freehold,  copyhold,  or  leasehold;  whether  taken  in 
the  names  of  the  purchaser  and  others,  jointly,  ox  in  the  names  of 
others  without  that  of  the  purchaser;  whether  in  one  name  or  sev- 
eral, whether  jointly  or  successive,  results  to  the  man  who  advances 

301 


*  244  .  DYER  V.  DYER. 

the  purchase-money;  and  it  goes  on  a  strict  analogy  to  the  rule  of 
common  law,  that,  where  a  feoffment  is  made  without  consideration, 
the  use  results  to  the  feoffor."  [Bickel's  Appeal,  5  Non-is,  204; 
Beck  V.  Gray  bill,  4  Casey,  66.;  AVillard  v.  AVillard,  6  P.  F.  Smith, 
119;  Kisler  y.  Kisler,  2  Watts,  323;  Bear  &  Koenigstein,  16  Neb. 
65;  Butler  v.  Rutledge,  2  Coldwell,  4;  Gass -y.  Gass,  1  Heisk.  613; 
Cecil  Bank  &  Snively,  23  Md.  261;  Strattan  v.  Dialogue,  1  C.  E. 
Green,  70;  Depeyster  v.  Gould,  2  Green's  Ch.  480;  Bank  of  U.  S. 
V.  Carrington,  7  Leigh,  566;  Pinnev  v.  Fellows,  15  Vt.  187;  Clark 
V.  Clark.,43  Vt.  685;  Page  v.  Page,  8  N.  H.  187;  R.  K  Co.  v.  Lamp- 
son,  47  Barb.  533;  Kane  Co.  v.  Herrington,  50  111.  232;  Elliott  v. 
Ai-mstrong,  2 Black,  198;  Tarpley  v.  Poage's  Admr.,  2  Texas,  150.] 

To  illustrate  this  statement  of  the  doctrine,  suppose  A.  advances 
the  purchase-money  of  a  freehold,  copyhold,  or  leasehold  estate,  and 
a  conveyance,  surrender,  or  assignment  of  the  legal  interest  in  it  is 
made  either  to  B.,  or  to  B.  and  C.,  or  to  A.,  B.,  and  C.  jointly,  or  to 
A.,  B.,  and  C.  successively.  In  all  these  cases,  if  B.  &  C.  are 
strangers,  a  trust  will  result  in  favour  of  A.,  the  party  advancing 
the  money.  That  a  trust  results  where  the  conveyance  is  taken  in 
one  name  or  several  jointly,  see  Ex  parte  Houghton,  17  Ves.  253; 
Rider  v.  Kidder,  10  Ves.  367;  or  successive,  see  Hoice  v.  Howe,  1 
Vern.  415;  Withers  y.  Withers,  kmh.  151;  Smith  v.  Baker,  1  Atk. 
385;  [If  the  purchase  money  is  paid  by  several,  and  the  title  is 
taken  in  the  name  of  only  one,  a  trust  will  result  in  favor  of  the 
others  in  proportion  to  the  amount  paid  by  each:  Union  Col.  v. 
Wheeler,  59  Barb.  585;  Case  v.  Codding,  38  Cal.  193;  Seaman  v. 
Cook,  14111.  501;  Morey  v.  Herrick,  6  Harris  (Pa.),  129;  Pierce  v. 
Pierce,  7  B.  Mon.  433;  Shoemaker  v.  Smith,  11  Humph.  81;  Honore 
V-  Hutchings,  8  Bush,  693.]  and  a  custom  of  a  manor  that  a  nomi- 
nee should  take  beneficially  will  not  hold  good,  as  being  unreason- 
able and  contrary  to  the  principles  of  resulting  trust:  Letcis  v.  Lane, 
2  My.  &  K.  449,  overruling  Edwards  v.  Fidel,  3  Madd.  237;  Jeans 
V.  Cooke,  24  Beav.  513. 

The  doctrine  is  applicable  to  personal  as  well  as  to  real  estate; 
and  a  trust  will  result  for  the  person  advancing  the  consideration- 
money  who  takes  a  bond  or  a  transfer  of  stock,  or  who  purchases  an 
annuity  or  any  other  thing  of  a  personal  nature  in  the  name  of  a 
stranger,  or  of  himself  jointly  with  a  stranger:  see  Ebrand  v. 
Dancer,  2  Ch.  Ca.  26;  Mortimer  y.  Davies,  cited  Rider  v.  Kidder,  10 
Ves.  365,  366;  Lloyd  v.  Read,  1  P.  Wms.  607;  Ex  parte  Houghton, 
17  Ves.  253;  Sidmoiithv.  Sidmouth,  2  Beav.  454;  Garricky.  Taylor, 
29  Beav.  79;  Beecher  v.  Major,  2  Drew.  &  Sm.  431;  James  v.  Holmes, 
4  De  G.  F.  &  Jo.  470.  [But  it  does  not  extend  to  perishable  prop- 
erty: Union  Bank -y.  Baker,  8  Humph.  447;  Perry  on  Trusts,  Sec. 
130.] 

The  doctrine  of  resulting  trusts  is  applicable  also  to  cases  where 
two  cr  more  persons  advance  the  purchase-money  jointly.  [But  to 
ere:  ■»  a  resulting  trust  in  such  a  case  a  payment  must  be  of  some 
302 


DYER  V.  DYER.  *  245 

definite  part  of  the  purchase  money:  Wheeler  v.  Kirtland,  8  C,  E. 
Green,  22;  Baker  v.  Vining,  80  Mo.  127;  Koynolds  v.  MorriB,  17 
Ohio,  510;  Sayro  u  Townsend,  15  Wend.  647.]  Lord  Hardicicke, 
indeed,  in  Crop  v.  Norton,  Barnard.  C  liep.  184,  .S.  C,  9  Mod.  235, 
is  said  to  have  thought  that  it  was  confined  to  cases  where  the  whole 
consideration  moved  from  one  person.  However,  in  Wray  v.  Steele, 
2  V.  &B.  8S8,  Sir  r/io//ias  Plainer,  Y.-C,  upon  the  gen- 
eral principle,  decided  that  there  was  a  resulting  *  trust  [*245  ] 
upon  a  joint  advance,  where  the  purchase  was  taken  in  the 
name  of  one.  "Lord  Hardwicke,"  observed  his  Honor,  "could  not 
have  used  the  language  ascribed  to  hini.  What  is  there  applicable) 
to  an  advance  by  a  single  individual,  that  is  not  equally  aj)plicable 
to  a  joint  advance  under  similar  circumstances?  See  In  re  Tliomas 
Ryan,  BLR  E(p  237. 

As  to  joint-purchasers,  see  note  to  Lake  v.  Gibson,  and  Lake  v. 
Craddock,  ante,  pp.  215,  217. 

So,  if  on  a  grant  of  copyholds  to  B.,  C,  and  D.,  successive  for  their 
lives,  the  fine  be  paid  by  A.,  the  equitable  interest  therein  would 
result  to  A. ;  and,  upon  his  death  intestate,  as  there  w^as  no  general 
occupancy  of  a  trust  of  estates  pur  aiitre  vie  (Castle  \.  Dod,  Cro. 
Jac.  200;  Penny  v.  Allen,  7  De  G  Mac.  &  G.  422);  and  they  were 
neither  within  the  Statute  of  Frauds  (29  Car.  2,  c.  3,  s.  13);  nor  14 
Geo.  2,  c.  20,  s.  9  (Withers  v.  Withers,  Amb.  152;  and  see  Zouch  d. 
Forse  v.  Forse,  7  East,  186);  notwithstanding  the  claims  of  the 
heir  and  the  tenants  of  the  legal  estate,  it  was  ultimately  decided 
that  the  personal  representative  of  A.  was  entitled  thereto.  See  Howe 
V.  Howe,  1  Vern.  415;  Rundell  v.  Rundell,  2  Vern.  252,  264;  ,S'.  C, 
2  Freem.  222;  Withers  w.  Withers,  Amb.  151;  Goodright  Y.Hodges, 
Watk.  Cop.  228;  Rumboll  v.  Rumholl,  2  Eden,  15.  And  by  the  late 
Wills  Act  (1  Vict.  c.  26)  s.  6,  it  is  enacted  that  if  there  be  no  spe- 
cial occupant  of  any  estate  pur  autre  vie,  whether  freehold  or  copy- 
hold, it  shall  go  to  executor  or  administrator  of  the  party  that  had 
the  estate  thereof  by  virtue  of  the  grant.  Sect.  6.  See  Reynolds 
V.  Wright,  25  Beav,  100;  2  De  G.  F.  &  J.  590. 

But  no  trust  will  result  if  the  policy  of  an  Act  of  Parliament 
would  be  thereby  defeated.  Thus,  it  was  held  that  no  trust  resulted 
in  favour  of  a  person  advancing  the  purchase-money  of  a  ship 
registered  in  the  name  of  another;  for  the  register,  according  to  the 
policy  of  the  old  Registry  Acts,  was  conclusive  evidence  of  owner- 
ship, both  at  law  and  in  equity.  "The  Registry  Acts,"  says  Lord 
Eldon,  "were  drawn  upon  this  policy;  that  it  is  for  the  public  inter- 
est to  secure  evidence  of  the  title  to  a  ship,  from  her  origin  to  the 
moment  in  which  you  look  back  to  her  history;  how  far  throughout 
her  existence  she  has  been  British  built  and  British  owned:  and  it  is 
obvious,  that,  if  where  the  title  arises  by  act  of  the  parties,  the  doc- 
trine of  implied  trust  in  this  Court  is  to  be  applied,  the  whole 
policy  of  these  acts  may  be  defeated:"     Ex  parte  Fa ZZop,  15  Ves. 

303 


*  24:6  DYER  V.  DYEPv. 

68;  see  also  Ex  parte  Houghton,  17  Ves.  251;    Slater  v.  Willis,  1 
Beav.  354. 

There  were,  however,  some  exceptions  to  the  rnle  under  the  old 
Registry  Acts,  for  instance,  where  a  member  of  a  firm 
[  *  246  ]  registered  *  a  ship  in  his  own  name,  he  was  a  trustee  for  the 
firm  (Holderness  v.  Lamport,  29  Beav.  129);  and  where 
a  person  having  no  interest  in  a  ship  transferred  it  to  a  person,  in 
whose  name  it  was  registered  by  mistake;  the  rightful  owner  was 
not  deprived  of  his  property  therein  (lb. ).  So,  if  letters  of  adminis- 
tration were  obtained  to  the  estate  of  a  shipowner,  and  the  adminis- 
trator transferred  the  ship  into  his  own  name,  and  afterwards  a  will 
was  discovered,  and  probate  granted  to  the  executor,  it  could  not 
be  contended  that  the  executor  was  precluded  from  obtaining  the 
ship,  because  another  person  had  bona  fide,  but  by  mistake,  been 
reoristered  as  owner.  lb.  See  also  and  consider  Armstrong  v. 
Armstrong,  21  Beav.  71,  78. 

The  policy  of  the  old  Registry  Acts  has  been  departed  from  in 
the  Merchant  Shipping  Act,  1854  (17  &  18  Vict.  c.  104,  amended 
by  25  &  26  Vict.  c.  63),  whereby,  after  enacting  that  not  more  than 
thirty-two  individuals  shall  be  entitled  to  be  registered  at  the  same 
time  as  owners  of  any  one  ship,  it  is  provided,  "but  this  rule  shall 
not  affect  the  beneficial  title  of  any  numbers  of  persons  or  of  any 
company  represented  by  or  claiming  under  or  through  any  regis- 
tered owner  or  joint  owner."     Sect.  37  (2). 

It  seems,  therefore,  that  if  A.  purchased  a  ship,  and  it  was  regis- 
tered in  the  name  of  B.,  a  stranger,  that  there  would  be  a  resulting 
trust  for  A. 

Where,  moreover,  a  person  having  no  title  to  a  ship  procures  it 
to  be  registered  in  his  name,  the  Court  of  Chancery  will  compel 
him  to  re-transfer  it  to  the  rightful  owner  and  account  for  the  earn- 
ings, even  though  there  have  been  no  fraud,  and  notwithstanding 
the  Merchant  Shipping  Act,  1854  (17  &  18  Vict.  c.  104):  Holder- 
ness V.  Lamport,  29  Beav.  129. 

As  to  the  effect  of  non-registration  of  the  mortgage  of  a  ship, 
see  Keith  v.  Burrows,  1  C.  P.  D.  722,  731. 

The  principle  upon  which  the  case  Ex  parte  Yallop  proceeds 
seems  to  have  been  lost  sight  of  in  the  case  of  Field  v.  Lonsdale 
(13  Beav.  78).  There  a  person  having  deposited  moneys  in  his  own 
name  in  a  savings  bank  to  the  full  extent  allowed  by  Act  of  Parlia- 
ment (9  Geo.  4,  c.  92),  made  further  deposits  to  an  account  in  his 
own  name  "in  trust  foi'"  his  sister,  but  no  notice  of  the  investment 
was  given  to  her.  By  the  terms  of  the  Act  he  retained  a  control 
over  the  whole  fund.  It  was  held  by  Lord  Langdale,  M.  R.,  on 
the  death  of  the  depositor,  that  his  sister  was  not  entitled.  "I 
think,"  said  his  Lordship,  "that  the  only  intention  was  to  evade 
the  provisions  of  the  Act  of  Parliament,  and  not  to  create  a  trust. 
The  declaration  is  therefore  ineffectual,  and  the  claim  must  be  dis- 
missed." 

304 


DYER  V.  DYER.  *  247 

*A  trust  will  not,  it  seems,  result  in  favour  of  a  person   [  *  247  ] 
"who  has  purchased  an  estate  in   the   name   of   another  in 
order  to  mvo  him  a  vote  in  electing  a  tueraber  of  Parliament:   Graven 
V.  Groves,  3  Y.  &  J.  168,  175.     See  also  Brackenbury  v.  Brackenbury, 

2  J.  &  W.  391.  [Resulting  trusts  Avill  not  arise  against  the  positive 
provisions  of  a  statute  or  in  contravention  of  public  policy:  Hill  on 
Trustees,  98,  94;  Hubbard  v.  Goodwin,  3  Leigh,  492;  Leggott  v. 
Dubois,  5  Paige,  114.] 

It  has  been  held  that  a  trust  will  result  in  favour  of  a  person  who 
has  purchased  lands  in  new  South  Wales  in  the  name  of  a  third 
party,  as  such  transaction  is  neither  immoral  nor  contrary  to  public 
policy,  nor  to  the  spirit  and  policy  of  the  New  South  Wales  Crown 
Lands  Alienation  Act,  1861;  Barton  v.  Muir,  6  L.  K.  P.  C.  S.  184. 

If  ih^  advance  of  the  purchase- money,  by  the  real  pui-chaser  does 
not  appear  on  the  face  of  the  deed,  and  even  if  it  is  stated  to  have 
been  made  by  the  nominal  purchaser,  parol  evidence  is  adiuissiblo 
to  prove  bv  whom  it  was  actually  made.  Thus,  in  Sir  John  Peachy'' s 
Case,  Rolls,  E.  T.,  1759,  M.S.,  Sugd.  V.  &  P.  910,  11th  edit.  Sir. 
Thomas  Clarke,  M.  R.,  laid  it  down,  that  if  A.  sold  an  estate  to  C, 
and  the  consideration  teas  exj^ressed  to  be  paid  by  B.,  and  the  con- 
veyance made  to  B.,  the  Court  would  allow  parol  evidence  to  prove 
the  money  paid  by  by  C. ;  [Parol  evidence  is  also  admissible  to  es- 
tablish a  trust  in  contradiction  of  the  terms  of  the  deed:  Buck  v- 
Pike,  2  Fairfield,  9;  Pinney  v.  Fellows,  15  Vt.  525;  Peabody  i-.  Tar- 
bell,  2  Cuah.  232.  It  is  also  admissible  against  the  answer  of  the 
nominal  purchasers,  although  the  testimony  to  establish  a  trust  under 
such  circumstances  must  be  very  strong:  Moore  v.  Moore,  38  N.  H. 
382;  Larkens  v.  Rhoades.  5  Porter,  196;  Blair  ^^  Bass,  4  Black,  540; 
Boyd  V.  McLean,  1  Johns.  Ch.  582,]  see  also  By  all  v.  By  all,  1  Atk. 
59;  S.  C,  Amb.  413;  Willis  v.  Willis,  2  Atk.  71;  Bartlett  v.  Pick- 
ersgill,  1  Eden,  516;  Lane  v.  Dighton,  Amb.  409;  Groves  v.  Groves, 

3  Y.  &  J.  163.  We  may,  therefore,  consider  that  these  authorities 
overrule  Kirk  v.  Webb,  Prec.  Ch.  84;  Heron  v.  Heron,  Prec.  Ch. 
163,  and  other  older  cases  in  which  it  was  held  that  parol  evidence 
could  not  be  admitted  to  prove  payment  of  purchase  money  so  as  to 
raise  a  resulting  trust,  on  the  ground,  that  the  admission  of  such 
evidence  would  be  contrary  to  the  Statute  of  Frauds  (29  Car.  2,  c. 
3):  for  the  trust  which  results  to  the  person  paying  the  purchase- 
money  and  taking  a  conveyance  in  the  name  of  another,  is  a  trust 
resulting  by  operation  of  law,  and  trusts  of  that  nature  are  expressly 
excepted  from  the  statute.     See  29  Car.  2,  c.  3,  s.  8. 

Where  the  trust  does  not  arise  on  the  face  of  the  deed  itself,  the 
parol  evidence  must  prove  the  fact  of  the  advance  of  the  purchase- 
money  very  clearly:  Netrton  v.  Preston,  Prec.  Ch.  103;  Gascoigne 
v.  Thiving,  1  Vern!  366;  Willis  v.  Willis,  2  Atk.  71;  Goodright  v. 
Hodges,  1  Watk.  Cop.  229;  Groves  v.  Groves,  3  Y.  &  J.  163.  Lord 
Hardicicke,  however,  in  Willis  v.  Willis,  2  Atk.  72,  [It  is  now  well 
settled  that  parol  evidence  may  be  introduced  both  to  create  and  to 

20   WHITE  ON   EQUITY.  305 


*  248  DYER  V.  DYER. 

rebut  the  presumption  of  a  resulting  trust:  Kendall  v-  Mann,  11 
Allen,  15;  Sanford  v.  Weeden,  2  Hiesk.  71;  Letcher  v.  Letcher,  4 
J.  J.  Marsh,  593;  Swinburne  v.  Swinburne,  28  N.  Y.  508;  Blodgett 
V.  Hildreth,  103  Mass.  487;  Dryden  v.  Hanway,  31  Md.  254;  De 
Peyster  v.  Gould,  2  Green's  Ch.  480;  Myers  u  Myer.--,  1  Casey,  100,] 
thought  that  parol  evidence  might  be  admitted  to  show  the  trust  from 
the  mean  circumstances  of  the  pretended  owner  of  the  real  estate  or 
inheritance,  which  made  it  impossible  for  him  to  be  puchaser.  See 
also,  Lench  v.  Lench,  10  Ves.  518;  Heard  \.  Pilley,  4  L.  R.  Ch.  App. 

552. 
[  *  248]  It  is  said  by  Mr,  Sanders,  in  his  *  Treatise  on  Uses  and 
Trusts,  Vol.  L  p.  854,  5th  edit.,  "that,  after  the  death  of 
the  supposed  nominal  purchaser,  parol  proof  can  in  no  instance  be 
admitted  against  the  express  declaration  of  the  deed."  [It  is  now 
held  in  this  country  that  parol  evidence  may  be  introduced  in  the 
cases  under  consideration,  even,  after  the  death  of  the  nominal  pur- 
chaser: See  Neil  v.  Keese,  5  Texas,  23;  Williams  v-  Hollingsworth, 
1  Strob.  Eq.  103;  McCammon  v.  Fettitt,  3  Sneed,  242;  Fausler  v. 
Jones,  7  Ind.  277.  This  is  on  the  principle  that  the  death  of  the 
nominal  purchaser  cannot  affect  the  admissibility  of  parol  testimony: 
Harrisburg  Bank  v.  Tyler,  3  W.  &  S.  373;  Livermore  v.  Aldrich,  5 
Cush.  435;  Unitarian  Co.  v.  Woodbury,  14  Me.  281.]  The  same 
opinion  is  expressed  by  another  author.  See  Koberts  on  Frauds,  9W, 
and  Chalk  v.  Danvers,  1  Ch.  Ca.  310.  It  does  not,  however,  appear 
that  the  Statute  of  Frauds  is  violated  by  admitting  parol  proof  of 
the  advance  of  the  purchase  money  after  the  death  of  the  nominal 
purchaser,  any  more  than  it  is  by  allowing  such  proof  in  his  lifetime. 
See  Lench  v.  Lench,  10  Ves.  511,  517;  Sugd.  V.  &  P.  910,  11th  edit. 

If  the  nominal  purchaser  admits  the  payment  of  the  purchase- 
money  by  the  real  purchaser,  a  trust  will  doubtless  result:  {Ryall 
V.  Rijall,  1  Atk.  58;  Lane  v.  Dighton,  Amb.  413);  and  even  although 
he,  by  answer  to  a  bill,  denied  such  payment,  parol  evidence  is,  it 
appears,  admissible  in  contradiction  to  it.  See  Gascoigne  \.  Thuing, 
1  Vern.  366;  Neicton  v.  I^reston,  Prec.  Ch.  103;  Bartletty.  Pickers- 
gill,  1  Eden,  515,516;  Edivardsv.  Pike,  lEden,  267;  Cooth  v.  Jack- 
son, 6  Ves.  39;  sedvide  Strett  v.  Whitmore,  2  Freem.  280. 

But  parol  evidence  has  been  held  not  admissible  to  prove  a  verbal 
jigrecment  of  an  agent  to  purchase  an  estate  for  his  principal,  where 
the  agent  having  purchased  the  estate  for  himself,  nitJi  Jtis  oicn 
money,  had,  by  his  answer,  denied  the  agreement.  See  BarUett  v. 
Pickersgill,  1  Eden,  515,  where  Lord  Keeper  Henley,  okarly  draw- 
ing the  distinction  between  the  admission  of  evidence  to  prove  the 
advance  of  ]mrchase-money,  where  the  trusts  result  by  operation  of 
^he  law,  and  are  exempted  from  the  Statute  of  Frauds  (29  Car.  2,  c. 
3),  and  the  admission  of  parol  evidence  to  prove  an  agreement,  said, 
that  to  allow  parol  evidence  in  the  latter  case  would  be  to  overturn 
the  statute.  "  The  statute,"  observes  his  Lordship,  "  says  that  there 
shall  be  no  trust  of  land  unless  by  memorandum  in  writing,  except 
306 


DYER  V.  DYER.  -  *  249 

such  frusfs  as  arise  by  oppvation  of  laic.  ["  If  the  trust  is  declared 
in  writing  at  the  time  of  the  transaction,  there  can  be  no  resulting 
trust,  as  the  one  precludes  the  other."  Perry  on  Trustn,  sec.  140; 
Dow  V.  Jewell,  21  N.  H.  470;  Alexander  v.  Worrance,  17  Mo.  280; 
Anstice  v.  Brown,  0  Paige,  448.]  Where  money  is  actually  paid, 
there  the  trust  arises  from  the  jjayment  of  the  money,  and  not  from 
any  agreement  of  the  j^ctrties.  But  this  is  uot  like  the  case  of  money 
paid  by  one  man,  and  the  conveyance  taken  in  the  name  of  another; 
iti  that  case,  the  bill  charges  that  the  estate  was  bought  with  the 
plaintiff's  money.  If  the  defendant  says  he  borrowed  it  of  the  plain- 
tiff, then  the  proof  will  be  whether  the  money  was  lent  or  not;  if  it 
was  not  lent,  the  plaintiff  bought  the  land:  but  as  here  the  trust  de- 
pends on  tlie  agreement,  if  I  establish  the  one  by  parol,  I  establish 
the  other  also If  the  jilaintijf  had  paid  any  part  of  the  pur- 
chase-money, it  ivould  have  been  a  reason  for  me  to  admit 
the  *evidence."  The  defendant  in  this  case  was  afterwards  [  *  249  ] 
convicted  of  perjury  for  having  denied  the  trust;  but  the 
rt^cord  of  the  conviction  was  held  not  to  be  evidence  of  the  agree- 
ment: Bartlett  v.  Pickersgill,  1  Eden,  517;  see  Chadn-icfcY.  Maden, 
9  Hare,  188. 

In  the  recent  case  of  Heard  v.  Pilley,  4  L.  R.  Ch.  App.  548, 
doubts  are  thrown  upon  Bartlett  v.  Pickersgill,  by  Lords  Justices 
Selwyn  and  Giffard,  the  latter  of  whom  observes,  "that,  as  regards 
the  case  of  Bartlett  v.  Pickersgill,  it  seems  to  be  inconsistent  with 
all  the  authorities  of  the  Court,  which  proceed  on  the  footing  that 
it  will  not  allow  the  Statute  of  Frauds  to  be  made  an  instrument  of 
fraud."  See  Nicholson  v.  Mulligan,  3  I.  R.  Eq.  308;  Cave  v.  Mack- 
enzie, 4G  L.J.  (Ch.)  564;  Chattock  v.  Muller,  8  Ch.  D.  177. 

Parol  evidence  is  admissible  to  prove  that  a  purchase  of  land  has 
been  made  by  the  trustee  with  trust-money,  notwithstanding  the 
Statute  of  Frauds  (29  Car.  2,  c.  3),  because  constructive  trusts  were 
excepted  therefrom,  sec.  8  ;  [The  Statute  of  Frauds  embraces  only 
trusts  created  or  declared  by  the  parties  and  does  not  effect  trusts 
arising  by  operation  of  law:  Foote  i\  Bryant,  47  N.  Y.  544;  Ward 
V.  Armstrong,  84  111.  151,  Judd  v.  Haseley,  22  la.  428;  Black  r. 
Black,  4  Pick.  238;  Ross  r.  Hegeman,  2  Edw.  Ch.  373.]  and  upon 
that  being  proved,  a  trust  will  result  in  favour  of  the  cestiii  que 
trust,  the  real  owner  of  the  money.  Thus,  Sir  William  Grant,  M. 
R.,  in  Lench  v.  Lench,  10  Yes.  517,  speaking  of  a  purchase  alleged 
to  have  been  made  with  trust  money,  says,  "  all  depends  upon  the 
proof  of  the  facts  ;  for,  whatever  doubts  may  have  been  formerly 
entertained  upon  this  subject,  it  is  now  settled  that  money  may, 
in  this  manner,  bo  followed  into  the  land  in  which  it  is  invested  ; 
and  a  claim  of  this  sort  may  be  supported  by  parol  evidence."  [If 
the  trustee  or  other  person  standing  in  a  fiduciary  relation  pur- 
chases property  with  the  funds  of  the  trust  estate  and  takes  title 
in  his  own  name,  he  must  hold  it  upon  a  resulting  trust  for  his  ben- 
eficiary:    Hall  V.  Vanness,  49  Pa.  St.  457;  Campbell  v.  Campbell, 

307 


*  250  V  DYER  V.  DYER. 

21  Mich.  459;  Settembre?;.  Putnam,  30  Cal.  490;  Holmes  r.  Camp- 
bell, 10  Miun.  40;  King  v.  Cushman,  43  111.  31.]  See  also  Anon., 
Sel.  Ch.  Ca.,  57;  Rijall  v.  Ryall,  1  Atk.  59;  S.  C,  A.mb.  413;  Lane 
V.  Dighton,  Amb.  409;  Balgney  v.  Hamilton,  cited  Amb.  414; 
Hughes  v.  Wells,  9  Hare,  749;  Harford  v.  Lloyd,  20  Beav.  310; 
Bridgman  v.  Gill,  24  Beav.  302;  Birds  v.  Askey,  24  Beav.  618; 
Pennell  v.  Deffell,  4  De  G.  Mac.  &  G.  372;  Trench  v.  Harrison,  17 
Sim.  Ill  ;  Wadham  v.  -Riflfgr,  1  Drew.  &  Sm.  216;  Williams  v. 
Thomas,  lb.  (V.-C.  K.)  417;  i^oZ/e  v.  Gregory,  13  W.  R.  (L.  C.)  3r.5; 
Frith  V.  Cartland,  2  Hem.  &  Mill.  417;  Hopper  v.  Conyers,  2  L. 
Eep.  Eq.  549;  Brown  v.  Ada?rts,  4  L.  R.  Ch.  App.  764;  Middleton  v. 
Pollock,  4  Ch.  D.  49;  Great  Eastern  Baihcay  Comjjany  v.  Turner, 
8  L.  R.  Ch.  App.  149;  Ex  parte  Cooke,  4  Ch.  D.  123;  £frf  v.  Burt, 
11  Ch.  D.  772  n. 

The  result  will  be  the  same  where  the  trust  money  has  been  in- 
vested by  the  trustee  in  the  purchase  of  goods  or  chattels  ;  In  re 
HalletVs  Estate,  13  Ch.  D.  709.  [For  American  notes  on  this  very 
important  case,  see  American  notes  and  cases  to  Brett's  Lead.  Cas. 
Mod.  Eq.  45  et  seq.  (Text  Book  Series.)] 

In  either  case  according  to  the  now  well-established  rule  of 
equity,  the  beneficial  owner  has  a  right  to  elect  either  to  take  the 
property  purchased,  or  to  hold  it  as  a  security  for  the  amount  of 
the  trust  money  laid  out  in  the  purchase  ;  or,  as  we  gen- 
[  *  250  ]  erally  express  *  it,  he  is  entitled  at  his  election  either  to 
take  the  property,  or  to  have  a  chai'ge  on  the  propertj^  for 
the  amount  of  the  trust  money  :  In  re  HalletVs  Estate,  13  Ch.  D. 
709,  per  Jesse  Z,  M.  R. 

Where,  however,  a  trustee  has  mixed  the  trust  juoney  with  his 
own  there  is  this  distinction,  that  the  cestui  que  trust,  or  beneficial 
owner,  can  no  longer  elect  to  take  the  property,  because  it  is  no 
longer  bought  with  the  trust  money  simply  and  purely,  but  with  a 
mixed  fund.  He  is  however  still  entitled  to  a  charge  on  the  prop- 
erty purchased,  for  the  amount  of  the  trust  money  laid  out  in  the 
purchase  ;  and  that  charge  is  quite  independent  of  the  fact  of  the 
amount  laid  out  by  the  trustee  :  Ih.,  709,  and  see  In  re  Pumfrey, 
The  Worcester  City  &  Coujity  Banking  Co.  v.  Blick,  22  Ch.  D.  255, 
as  to  right  of  the  trustee  to  an  indemnity  for  the  sum  he  has  ad- 
vanced. [When  a  person  holding  money  in  a  fiduciary  character 
mixes  it  with  his  own,  a  resulting  trust  arises  for  the  benefit  of  the 
cestui  que  trust  who  will  take  the  entire  fund  unless  the  trustee  es- 
tablishes how  much  money  of  the  mixed  fund  was  his  and  how 
much  belonged  to  the  cestui  que  trust.  The  rule  on  the  subject  of 
confusion  of  goods  regulates  this:  Hill  on  Trustees,  148;  Thomp- 
son's Appeal,  10  Harris  (Pa.),  16;  School  t'.  Kirwin,  25  111.  73.] 

In  following  trust  money,  invested  by  a  person  to   whom  it  was 
intrusted,  it  is  immaterial  whether  he  were  an  express  trustee,  an 
agent,  bailee,  collector  of  rents,  or  anybody  else  in  a  fiduciary  posi- 
tion :  In  re  HalletVs  Estate,  13  Ch.  D.  696,  709,  and  the  cases  there 
308 


DYER  V.  DYER.  *  251 

cited.  Harris  v.  Truman,  7  Q.  B.  D.  340;  0  Q.  B.  D.  204;  New 
Zealand  &  Australian  J.and  Company  v.  Watson,  7  Q.  B.  8<4,  383, 
reversing  »S'.  C,  uoin.,  N civ  Zealand  &  Australian  Land  Co.  \.  Hus- 
ton, 5  Q.  B.  D.  474.  [The  luomeat  yoix  establlHli  the  fiduciary  rela- 
tion, the  modern  rules  of  equity  as  regards  following  trust  money- 
apply:  Kesor  V.  Resor,  0  Ind.  347;  Baron  r.  Baron,  24  Vt.  375; 
McLarren  v.  Brewer,  51  Me.  402;  Pngh  v.  Currie,  5  Ala.  4  10;  Oli- 
ver V.  Piatt,  3  Howard,  401;  Eshleman  v.  Lewis,  13  Wright  (Pa.), 
419.] 

Money  also  held  by  a  person  in  a  fiduciary  character,  if  paid  by 
him  to  an  account  at  his  banker's,  may  be  followed  by  the  person 
for  whom  he  held  the  money,  who  has  a  charge  on  the  balance  in 
the  banker's  hands.  {In  re  HalletVs  Estate,  13  Ch.  I).  fiQfj,  dis- 
senting from  Ex  parte  Dale  &  Co.,  11  Ch.  D.  772.)  Hence  if  a 
person  who  holds  money  as  a  trustee  or  in  a  fiduciary  character,  pays 
it  to  his  account  at  his  banker's,  and  mixes  it  vrith  his  own  money, 
and  draws  out  sums  by  cheques  in  the  ordinary  manner,  the  rule  in 
Clayton's  Case  (1  Mer.  572;"Tudor's  L.  C.  M.  L.  1,  3rd  ed.)  attrib- 
uting the  first  drawings  out  to  the  first  payments  in  does  not  apply, 
so  that  the  drawer  must  be  taken  to  have  drawn  out  his  own  money 
in  preference  to  the  trust  money  :  In  re  HalletVs  Estate,  13  Ch.  D. 
090,  on  this  point  not  following  Pennell  v.  Deffell,  4  De  G.  M.  &  G. 
372. 

It  seems,  however,  that  as  between  two  cestui  que  trusts  whose 
money,  the  trustee  has  paid  into  his  own  account  at  his  banker's, 
the  rule  in  Clayton''s  Case  will  apply,  so  tliat  the  first  sum  paid  in 
will  be  held  to  have  been  first  drawn  out  :  In  re  HalletVs  Estate, 
13  Ch.  D.  090. 

A  trustee  as  well  as  a  cestui  que  trust  may  follow  property  in 
which  a  trust  fund  has  been  wrongly  invested,  though  he  has  ac- 
tively concurred  in  the  breach  of  trust  ;  Carson  v.  Sloane, 
13  L.  *  R.  I.  139;  Price  v.  Blakemore,  0  Beav.  507.  [  *  251  ] 

Trust  money,  however,  cannot  be  followed,  if  paid  to  a 
third  person  bona  fide,  as  for  instance  to  a  tradesman  in  part  pay- 
ment of  a  debt  (Collins  v.  Stimson,  11  Q.  B.  142,  144),  to  an 
auctioneer  as  a  deposit,  afterwards  forfeited  for  non-completion  of 
the  contract  (/6.),  to  a  landlord  in  payment  of  rent  by  an  uncertifi- 
cated bankrupt:  Ex  parte  Deivhurst,  7  L.  R.  Ch.  App.  185. 

Where  a  person  under  an  obligation  to  settle  all  his  personal 
estate  afterwards  buys  laud  in  his  own  name,  partly  with  borrowed 
money,  although  upon  his  death  iufpstate  there  will  be  no  resulting 
trust  of  the  estate  which  will  descend  to  his  heir,  all  his  personal 
estate  which  can  be  traced  as  having  been  employed  in  the  pur- 
chase of  the  estate,  in  paying  ofi"  the  borrowed  money,  or  in  lasting 
improvements  on  the  estate,  will  be  a  charge  upon  it  in  the  hands 
of  the  heir  for  the  benefit  of  the  cestui  que  trusts:  Leivis  v.  Madocks, 
8  Ves.  150;  17  Ves.  48;  Denton  v.  Da  vies,  18  Yes.  499.  In  the  case 
of  the  settlor's  bankruptcy,  see  40  &  47  Vict.  c.  52,  s.  47. 

309 


*  252  DYER  V.  DYER. 

No  trust  will  result  for  a  person  who  advaDces  the  purchase- 
money  merely  as  a  loan  Bartlett  v.  Pickersgill,  1  Eden,  516;  Crop 
V.  Norton,  9  Mod.  233,  235:  Aveling  \.  Knipe,  19  Ves.  445.  [In 
order  to  create  a  resulting  trust  the  purchase- money  must  be  ad- 
vanced and  paid  in  the  capacity  of  purchaser;  and  if  one  pays  the 
purchase-money  by  way  of  a  loan,  for  another,  and  the  conveyance 
is  taken  in  the  name  of  the  other,  no  trust  will  result  to  the  one  who 
pays  the  purchase  money:  Dudley  v-  Batchelder,  53  Me.  403; 
White  V.  Carpenter,  2  Paige,  217;  Gibson  v.  Toole,  40  Miss.  788; 
Henderson  v.  Hoke,  1  Dev.  and  Batch.  119.] 

It  was  stated  by  Sir  G.  Jessel,  M.  K.,  that  "he  did  not  understand 
that  the  law  of  the  Court  made  any  difference  between  a  tranf-fer 
and  a  purchase — a  purchase  of  stock  in  the  joint  names  of  the  ben- 
eficial owner  and  another,  or  a  transfer  from  that  beneficial  owner 
into  the  joint  names  of  himself  or  herself  [and  another],  or  a  trans- 
fer to  a  third  name  from  the  beneficial  owner  into  another  name. 
In  either  case,  in  the  absence  of  evidence  to  the  contrary,  there  was 
a  resulting  trust  in  favour  of  the  beneficial  owner."  Faickes  v. 
Pascoe,  10  L.  E.  Ch.  App.  345,  n.  In  the  Court  of  Appeal,  where 
the  decision  of  the  Master  of  the  Eolls  was  reversed,  upon  the  ad- 
mission of  evidence  rebutting  the  resulting  trust,  if  any,  the  Lords 
Justices  did  not  decide  the  point  raised  by  the  Master  of  Rolls, 
viz.,  whether  a  trust  results  upon  the  transfer  of  stock  from  the 
owner  into  the  name  of  a  third  party,  in  the  same  manner  as  it  un- 
doubtedly would  do  if  he  had  purchased  stock  and  had  it  trans- 
ferred by  another  into  the  name  of  such  person.  But  Lord  Justice 
James,  although  he  assumed  for  the  purpose  of  his  judgment  that 
there  was  no  distinction  between  the  two  cases,  evidently  -did  not 
ao-ree  with  the  law  as  laid  down  by  the  Master  of  the  Rolls,  as  he 
observed,  although  he  would  then  assume  that  the  implication 
of  a  resulting  trust  arose  as  much  in  the  ease  of  a  trans- 
[  *  252  ]  fer  as  *in  that  of  a  purchase  of  stock,  "that  certainly  was 
not  the  case  with  regard  to  a  conveyance  of  land  ;" 
Faivkes  v.  Pascoe,  10  L.  R.  Ch.  App.  348. 

With  regard  to  a  voluntary  conveyance  of  land,  in  the  case  of 
Young  v.  Peachy,  2  Atk.  257,  Lord  Hardwicke  distinctly  lays  it 
down  that  where  a  voluntary  conveyance  is  made,  it  is  by  no  means 
the  rule  of  the  Court  that  a  trust  arises  by  implication.  That  trusts 
by  implication  or  operation  of  law  arise  where  one  person  pays  the 
purchase-money  and  the  conveyance  is  taken  in  the  name  of  another, 
or  in  some  other  cases  of  that  kind,  but  the  rule  is  by  no  means  so 
large  as  to  extend  to  every  voluntary  conveyance.  See  also  Lloyd 
V.  Spillet,  2  Atk.  148,  150.  Sed  vide  Lewin  on  Trustees,  p.  131  n_., 
7th  ed.,  and  cases  there  cited;  Fordyce  v.  Willis,  3  Bro.  C.  C.  585. 
[No  trust  results  because  of  a  conveyance  without  consideration: 
Grofif  V.  Rohrer,  35  Md.  327;  Burt  v.  Wilson,  28  Cal.  632;  Ownes 
V.  Ownes,  8  C.  E.  Green,  60.     Parol  evidence  is  not   admissible  to 

310 


DYER  V.  i>yp:r.  *  253 

control  or  contradict  the  consideration ;  Farrington  v.  Barr,  30  N. 
H.  86;  Randall  v.  Phillips,  3  Mason,  388.] 

Upon  the  same  principle,  in  George  v.  Hoivard,  7  Price,  G40, 
where  an  intestate  had  transferred  slock  into  the  joint  names  of 
himself  and  the  husband  of  one  of  his  nieces,  Lord  Chief  Baron 
Richards  says,  '"It  was  argued  on  this  giuund,  that  the  intertate 
having  purchased  the  stock  with  his  own  money,  and  transferred  it 
into  his  own  name  and  that  of  another  i)erson,  the  presumption  is 
that  the  other  person,  if  a  stranger,  is  merely  a  trustee  for  him 
whoso  money  it  was:  and  so  it  might  have  been  presumed  here,  per- 
haps, if  such  were  the  facts,  but  in  ihis  case,  iiiock  alreadij purchased 
and  invested  was  tranf erred  into  the  name  of  the  owner  and  the 
defendant;  and  if  I  deliver  over  money,  or  transfer  stock  to  another, 
even  although  ho  should  be  a  stranger,  it  would  be  primCi  facie  a 
gift." 

We  may  therefore  conclude  that  if  there  has  been  a  voluntary 
grant  or  transfer  of  real  or  personal  property  to  a  stranger,  and  a, 
fortiori  if  to  a  child  or  a  person  to  whom  the  grant  or  a  transferor 
stands  in  loco  parentis  (Batstone  v.  Suiter,  19  L.  R.  Eq.  2vO;  10 
L.  R.  Ch.  App.  431)  the  presumption  arises  that  a  gift  was  in- 
tended to  the  grantee  or  transferee,  which  may,  however*,  be  rebutted 
or  supported  by  evidence:  Hutchins  v.  Lee,  1  Atk.  447;  C'ooA;  v. 
Fountai)!,  3  Swans.  585;  Young  v.  Peachy,  2  Atk.  256;  and  see 
Hill  on  Trustees,  72,  73. 

Hoiv  resulting  trusts  may  be  rebutted. — Resulting  trirsts,  however, 
as  they  arise  from  equitable  presumption,  may  be  rebutted  by  parol 
evidence,  showing  it  was  the  intention  of  the  person  who  advanced 
the  purchase-money,  and  whicli  intention  cannot  be  altered  at  a 
subsequent  period.  [The  trusts  under  consideration  rest  upon  pre- 
sumption,  and  this  presumption  is  not  one  Juris  et  de  jure.  But  of 
fact  merely,  and  open  to  rebuttal,  and  all  the  attendant  facts  and 
circumstances  may  be  proved  by  parol:  Bisph.  Eq.  sec.  83;  Byers 
V.  Danley,  27  Ark.  88.]  Groves  v.  Groves,  3  Y.  &  J.  172),  that  the  per- 
son to  whom  the  property  was  transferred  either  solely  or  jointly 
with  such  person  should  take  for  his  own  benefit  (Good- 
right  V.  Hodges,  1  Watk.  Cop.  *227;  S.  C.,Lofft,  230;  Ki  [  -253  ] 
der  V.  Kidder,  10  Ves.  364;  Rundle  v.  Rundle,  2  Yern. 
252;  see  Order,  n.  (1)  lb.;  Redington  v.  Redington,  3  Ridg.  P.  C. 
178;  Deacon  v.  Colquhoun,2  Drew.  21;  Garrick\.  Taylor^  29  Beav, 
79,  10  W.  R.  (L.  J.)  49;  Wheeler  v.  Smith,  1  Giflf.  300;  Nicholson 
V.  Mulligan,  3  I.  R.  Eq.  308;  Faivkes  v.  Pascoe,  10  L.  R.  Cb.  Aup. 
343). 

And  such  trusts  may  be  rebutted  as  to  part,  and  prevail  as  to  the 
remainder.  Thus,  where  a  person  has  advanced  the  purchase- 
money,  and  has  taken  a  transfer  of  stock  or  the  conveyance  of  an 
estate  in  the  name  of  a  stranger,  upon  proof  of  the  intention  of  the 
person  advancing  the  money  to  confer  upon  the  nominee  a  life  in- 

311 


*  254  DYER  V.  DYER. 

terest  in  the  stock  or  estate,  the  resulting  trust  will  be  rebutted  as 
to  the  life  interest,  but  will  prevail  as  to  the  remainder:  Lane  v. 
Dighfon,  Amb.  409;  Rider  v.  Kidder,  lOVes.  368;  Benboic\.  7'oicn- 
send,  1  My.  &  K.  501. 

In  the  same  manner  the  resulting  trust  may  prevail  as  to  a  life 
interest,  but  be  rebutted  as  to  the  remainder.  This  is  often  the 
case  when  a  purchase  of  stock  has  been  made  by  the  purchaser  in 
the  joint  names  of  himself  and  a  stranger:  Voivkes  v.  Pascoe,  10 
L.  R.  Ch.  App.  343;  Standing  v.  BottTing,  27  Ch.  D.  341;  ;S'.  C, 
affirmed  on  appeal  W.  N.  1885,  Dec.  20,  P.  223. 

AVhere  a  transfer  has  been  made  to  the  name  of  a  stranger,  or  a 
purchase  made  in  his  name,  either  solely  or  jointly  with  that  of  the 
purchaser  or  transferor,  and  the  presumption  in  favour  of  a  result- 
ing trust  is  either  wholly  or  partially  rebutted  by  evidence,  any  sub- 
sequent purchase  or  transfer  in  the  same  name  or  names  will  be  con- 
sidered as  made  for  the  same  purpose.  See  Fotvkes  v.  Pascoe,  10  L. 
R.  Ch.  App.  354,  where  Mellish,  L.  J.,  observes,  "Assuming  the 
testatrix  to  know  that  she  had  made  a  gift,  and  had  invested  a  sum 
of  money  in  stock  in  the  joint  names  of  herself  and  Pascoe,  for 
the  purpose  of  making  a  present  to  him,  it  would  certainly  be  a 
very  extraordinary  thing  that  she  should  go  and  add  other  large 
sums  to  that  account,  not  for  the  purpose  of  making  a  present  to  him, 
but  for  the  purpose  of  his  being  a  trustee." 

The  mere  receipt  of  the  income  of  the  property  transferred  is 
not  of  itself  sufficient  to  show  that  the  transferor  did  not  intend  to 
confer  a  beneficial  interest  on  the  transferees:  George  v.  Hoivard, 
1  Price,  646;  Christy  v.  Courtenay,  13  Beav.  96;  Batstonex.  Salter, 
19  L.  R.  Eq.  250,  10  L.  R.  Ch.  App.  431. 

It  seems  that  statements  on  the  part  of  the  person  making  the 
purchase,  evidencing  an  intention  to  confer  some  undefined  benefit 
not  shown  to  be  acted  on,  and  a  fortiori  if  they  are  inconsistent 
with  the  acts  of  enjoyment  of  the  property,  will  not  be  sufficient  to 
rebut  a  resulting  trust:  [The  facts  in  all  cases  must  be  proved 
with  great  clearness  and  certaintv :  Parmlee  v.  Sloan,  37  Ind.  469 ; 
Cutlery.  Tuttle,  19  N.  J.  Ch.  560;  Holders  Nunnelly,  2  Cold.  288; 
Thomas  v.  Sandford,  49  Md.  181;  Clark  v.  Quackenboss, 
[  *  254  ]  27  111.  260;  Wright  v.  King,  Harr.  Ch.  12.]  *  Nicholson 
V.  Mulligan,  3  I.  R.  Eq.  308,  320. 

Parol  evidence  of  interested  parties  is  admissible  to  rebut  a  result- 
ing trust,  and  in  connection  with  surrounding  circumstances  it  might 
have  that  efPect,  althovigh  it  would  not  if  taken  by  itself.  See 
Fowkes  V.  Pascoe,  10  L.  R.  Ch.  App.  343.  [The  admissions  of  the 
nominal  purchaser  and  grantee  in  the  deed,  and  other  proj^er  docu- 
ments, and  even  circumstantial  evidence,  as,  that  the  means  of  the 
nominal  purchaser  were  so  limited  that  it  was  impossible  for  him  to 
pay  the  purchase-monev,  are  all  competent  evidence:  Farrell  v. 
Lloyd,  69  Pa.  St.  239;  Mitchell  v.  O'Neil,  4  Nev.  504;  Baumgart- 
ner  v.  Guessfeld,  38  Mo.  36;  Gascoigne  v.  Twing,  1  Vroom,  366.] 
312 


DYER  V.  DYER.  *  255 

The  presumptioa  of  a  resulting  trust  will  not  bo  raised,  after  ac- 
quiescence for  a  great  length  of  time  in  the  enjoyment  of  the  prop- 
erty, by  the  person  in  whose  name  it  was  j)urchased  by  the  person 
advancing  the  purchase-money.  Delaue  v.  Delane,  7  Bro.  P.  C. 
279,  Toml.  ed.  See,  also,  Groves  v.  Groves,  3  Y.  A:  J.  172;  Clegg  v. 
Edmondson,  8  De  G.  Mac.  &  G.  787.  [The  courts  will  not  enforce 
a  resulting  trust  after  the  lapse  of  great  lapse  of  time,  or  laches  on 
the  part  of  the  supposed  cestui  que  trust:.  Smith  f.  Patton,  12  W. 
Va.  541;  King  u  Purdee,  (3  Otto,  90;  Douglass  r.  Lucas,  63  Pa. 
St.  11;  Hall  V.  Doran,  13  la.  308;  Midmer  v.  Midmer,  2G  N.  J. 
Eq.  299;  Miller  y.  Blose,  30  Gratt  (Va.),  744] 

Where  there  is  an  express  trust  declared,  upon  a  purchase  made 
in  the  names  of  strangers,  (Ayherst  v.  Jenkins,  16  L.  K.  Eq.  275), 
though  but  by  parol,  there  can  be  no  resulting  trust;  for  resulting 
trusts,  though  saved  by  the  Statute  of  Frauds  (29  Car.  2,  c.  3),  are 
only  saved  and  left  as  they  were  before  the  act;  and  a  bare  declara- 
tion by  parol,  before  the  act,  would  prevent  any  resulting  trust. 
See  Bellasis  v.  Compton,  2  Vern.  294. 

Where  a  person  in  order  to  defraud  his  creditors  had  transferred 
stock  to  a  fictitious  person,  upon  proof  of  the  fact,  a  transfer  was  or- 
dered to  be  made  to  the  personal  representatives  of  the  transferor 
{Arthur  v.  Midland  Railwaij  Co.,  3  K.  &  J.  204) ;  and  in  a  case  where 
a  person  had  made  a  similar  transfer  with  the  same  object,  and  after- 
wards became  bankrupt,  a  re-transfer  at  the  suit  of  his  assignees 
was  ordered  to  be  made  into  his  own  name:  Greeii  v.  The  Bank  of 
England,  3  Y.  &  C.  722. 

AV  here,  however,  a  person  for  the  purpose  of  giving  a  fictitious 
credit  to  others,  deposits  money  to  their  credit  with  a  bank  to  be 
held  upon  trust  for  himself,  the  latter  cannot  after  the  bankruptcy 
of  such  others  reclaim  the  deposit,  even  if  he  might  have  done  so 
previously.  See  In  re  Great  Berlin  Steamboat  Co.,  26  Ch.  D.  616. 
There  B.  for  the  purpose  of  enabling  a  company  to  have  a  fictitious 
credit  in  case  of  inquiries  at  their  bankers  placed  money  to  their 
credit  which  they  were  to  hold  in  trust  for  him.  Some  of  the  money 
having  been  drawn  out  with  B.'s  consent,  and  the  company  having 
been  ordered  to  be  wound  up,  it  was  held  by  the  Court  of  Appeal 
affirming  the  decision  of  Bacon,  V.-C,  that  B.  could  not  claim  to 
have  the  balance  paid  to  him. 

Presumption  of  Advancement  on  a  purchase  in  the  name  of  a 
child,  icife,  c&c.  ]^As  to  purchases  made  in  the  names  of  children, 
or  of  persons  equally  favoured,  it  may  be  laid  down  as  a  general 
rule  that  where  a  purchase  is  made  by  a  parent  in  the 
name  of  a  child,  *  there  will  primCt  facie  be  no  resulting  [  *  255  ] 
trust  for  the  parent,  but  on  the  contrary,  a  j^resuwption 
arises  that  an  advancement  tuas  intended.  [If  a  purchaser  takes  a 
conveyance  in  the  name  of  his  wife  or  child  or  any  other  person, 
for  whom  he  is  under  natui-al,  legal  or  moral  obligation  to  provide, 

313 


*  255  DYER  V.  DYER. 

the  presumption  of  a  resulting  trust  is  rebutted,  and  the  contrary 
presumption  arises, — that  the  purchase  and  the  conveyance  were 
intended  to  be  an  advancement  for  the  nominal  purchaser:  Fatberlee 
V.  Fletcher,  31  Miss.  265;  Thomas  ^'.  Chicago,  55  111.  403;  Wilton 
V.  Devine,  20  Barb.  9;  Tremper  v.  Burton,  18  Ohio,  418;  Dickin- 
son V.  Davis,  44  N.  H.  647;  Miller  v.  Blose,  30  Gratt  (Va.),  744; 
Stanley  v.  Brannon,  6  Black,  193;  Shepherd  v.  AVhite,  10  Texas, 
72;  Butler  v.  Ins.  Co.,  14  Ala.  777;  Dudley  v.  Bosworth,  10  Humph. 
12;  Shawu.  Read,  47  Pa.  St.  96.]  "I  remember,"  says  Lord  Eldon, 
"the  case  of  Dyer  v.  Dyer,  which  was  very  fully  considered;  and 
the  Court  meant  to  establish  this  principle,  viz.,  admitting  the  clear 
rule  that,  where  A.  purchases  in  the  name  of  B.,  A.  paying  the  con- 
sideration B.  is  a  trustee,  notwithstanding  the  Statute  of  Frauds 
(29  Car.  2,  c.  3),  that  rule  does  not  obtain  where  the  purchase  is  in 
the  name  of  a  son;  that  purchase  is  an  advancement  prima  facie; 
and  in  this  sense,  that  this  principle  of  law  and  presumption  is  not 
to  be  frittered  away  by  nice  refinements.  Therefore,  if  the  pur- 
chase was  of  a  fee  simple  immediately,  primCi  facie  the  son  wou.ld 
take;  so,  if  it  was  the  purchase  of  a  reversion;  and  it  is  very  diffi- 
cult, upon  the  mere  circumstance  of  the  proximity  or  possible  re- 
moteness of  possession,  to  do  that  away.  Nothing  could  be  stronger 
than  the  circumstance  in  Dyer  v.  Dyer,  that  the  purchaser  had  ac- 
tually devised  it.  He  certainly  took  it  to  be  his  own;  but  he  hap- 
pened to  mistake  the  rule:  Finch  v.  Finch,  15  Ves.  50;  see  also 
Franklin  v.  Franklin,  1  Swanst.  17,  18;  Grey  v.  Grey,  2  Swanst. 
597;  S.  C,  Rep.  t.  Finch,  340;  Sidmouthy.  Sidmonth,  2  Beav.  454; 
Christy  v.  Courienay,  13  Beav.  96;  Williams  v.  Williams,  32  Beav. 
370;  Tucker  vr  Burroiv,  2  H.  &  M.  515,  524;  and  see  Keats  v, 
Heioer,  13  W.  R.  (LL.J. )  34,  where,  however,  it  was  held  that  there 
was  an  express  trust  for  the  purchaser. 

The  presumption  may  also  arise  in  favour  of  any  person  with  re- 
gard to  whom  the  person  advancing  the  money  has  placed  himself 
ill  loco  par^entis,  thus  in  Beckford  v.  Beckford,  Lofift.  490,  an  illegiti- 
mate son;  in  Ebrand  v.  Dancer,  2  Ch.  Ca.  26,  a  grand-child;  and  in 
Currant  v.  Jago,  1  Coll.  261,  the  nephew  of  a  wife,  were  held  entitled 
to  property  purchased  in  their  names,  from  the  presumption  of  ad- 
vancement being  intended.  [The  rule  embraces  all  persons  for 
whom  the  purchaser  is  under  any  legal  or  moral  obligation  to  pro- 
vide. It  embraces  sons  and  daughters:  Murphy  v.  Nathans,  46 
Pa.  St.  508;  Baker  v.  Leathers,  3  Ind.  558;  Astreen  v.  Flanagan, 
3  Edw.  Ch.  278.  It  applies  also  to  mother  and  daughter:  Murphy 
V.  Nathans,  10  Wright  (Pa.),  508;  to  husband  and'  wife:  Cotton  v. 
"Woods,  25  Iowa,  43;  Alexander  v.  W^arram,  17  Mo.  228;  Earnest's 
Appeal,  106  Pa.  St.  310;  Whitten  v.  Whitten,  3  Cush.  194;  Father- 
lee  V.  Fletcher,  31  Miss.  265;  to  purchases  in  the  name  of  the  son- 
in-law:  Baker  v.  Leathers,  3  Porter,  (Ind.)  558;  to  grand-father  and 
grand-child:  Kilpin  v.  Kilpin,  1  M.  &  K  520. 

A  purchase  in  the  name  of  a  brother  will  not  be  considered  an 
314 


DYER  V.  DYER.  *  256 

advancement,    unless    the   brother   stands   in    loco  parentis  to  his 
brother.      Edwards  u.  Edwards,  3  Wright  (Pa.),  877.] 

But  it  has  been  held  in  a  recent  case  that  the  mere  fact  that  a 
grand- father  had  placed  himself  in  loco  xjarentin  towards  his  illegiti- 
mate grand-son  during  the  life  of  his  father,  will  not  itself  alone 
raise  a  presumiition  that  a  purchase  in  the  name  of  such  illegiti- 
mate grandson  was  intended  for  his  advancement:  Tucker  v.  Bnr- 
roiL\  2  H.  &  M.  515;  and  see  Forrest  v.  Forrest,  18  W.  R.  (V.-C. 
S.)  880;  Hart  v.  Hart,  W.  N.  1877,  p.  184. 

["It  seems  to  be  doubtful  whether  a  purchase  in  the  name  of  an 
illegitimate  child  is  to  be  treated  as  an  advancement,  although  the 
weight  of  authority  is  in  favor  of  treating  it  so:"  Bisph.  Eq.  Sec. 
84] 

The  presumption  also  arises  upon  the  purchase  in  the  name  of 
a  wife:  (Kingclon  v.  Bridges,  2  Vern.  07;  Chrisfs  Hospital  v.  Bud- 
gin,  2  Vern.  088;  Back  v.  Andreiv,  2  Vern.  120;  Glaister  \.  Hewer, 
8  Ves.  199;  Rider  v.  Kidder,  10  Ves.  3()7:  and  Lorimer 
*v.  Lorimer,  10  Ves,  307,  n. ;  Loiu  v.  Carter,  1  Beav.  420;  [*256] 
and  see  Gosling  v.  Gosling,  8  Drew.  335);  or  when  there 
is  a  purchase  by  a  husband  in  the  joint  names  of  himself  and  his 
wife:  (Re  Gadburij,  11  W.  R.  (V.  C.  K.)  895;  Lloyd  v.  Piighe,  14 
L.  R.  Eq.  241;  8  L.  R.  Ch.  App.  88) ;  or  in  the  joint  names  of  him- 
self and  his  wife  and  child:  Devoy  v.  Devoy,  3  Sm.  &  Giff.  403;  or 
in  the  joint  names  of  himself,  his  wife  and  a  stranger  or  strangers, 
even  although  such  stranger  or  strangers  be  the  trustee  or  trustees 
of  his  marriage  settlement,  for  even  in  such  case  the  purchase  will 
be  considered  an  advancement  for  the  wife  and  not  an  augmenta- 
tion of  the  funds  in  settlement.  [A  purchase  by  a  wife  in  the  name 
of  her  husband  may  be  shown  to  be  a  trust:  McGovern  v.  Knox, 
21  Ohio,  552.]  In  re  Eykyn's  Trusts,  6  Ch.  R  115.  [See  as  to 
wife  taking  by  survivorship  the  balance  of  a  joint  account  kept  by 
her  deceased  husband  and  herself  with  a  banker:  In  re  Young, 
Tryeu.  Sullivan,  W.  N.  1885,  Feb.  7,  p.  25.] 

Where  the  husband  makes  an  investment,  such  as  money  or  stock, 
in  the  names  of  himself  and  his  wife,  it  is  an  advancement  for  the 
benefit  of  the  wife  absolutely  if  she  survives  her  husband,  but  if 
he  survives  her,  then  it  reverts  to  him  as  joint  tenant  with  his  wife: 
In  re  Eykyn^s  Trusts,  0  Ch.  D.  118;  Diimmer  v.  Pitcher,  2  My.  & 
K.  202. 

The  only  difference  where  the  investment  is  in  the  name  of  the 
husband,  wife  and  a  stranger,  is  that  the  stranger  must  be  a  trustee 
for  the  survivor  of  the  husband  and  wife:  In  re  Eykyn^s  Trusts, 
6  Ch.  D.  119.     See  also  Foickes  v.  Pascoe,  10  L.  R.  Ch.  App.  343. 

But  the  presumption  does  not  arise  when  the  purchaser  makes_ 
the  purchase  in  the  names  of  himself  and  a  woman  with  whom  he 
was  cohabiting  or  with  w'hom  he  had  gone  through  the  mere  form 
of  marriage,  as  in  the  case  of  a  marriage  with  a  deceased  wife's 
sister  after  the  passing  of  the  Act  to  render  certain  marriages  valid, 

315 


*  257  DYER  V.  DYER. 

and  to  alter  the  law  with  respect  to  certain  voidable  marriages  (5 
&  6  Will.  4,  c.  54):  Soar  v.  Booster,  4  K.  &  J.  152. 

It  seems  formerly  to  have  been  held  that  the  presumption  of  ad- 
vancement will  not  arise  from  the  mere  purchase  by  a  married  luoman 
out  of  her  separate  estate  in  the  names  of  her  children,  because 
a  married  woman  was  under  no  legal  obligation  to  provide  for  her 
children:  Re  De  Visme,  2  De  G.  Jo.  &  Sm.  17.  But  it  has  been 
held  upon  proof  of  the  intention  to  advance  by  a  married  woman 
making  a  purchase  out  of  her  separate  estate  in  the  name  of  her 
neice,  that  the  latter  was  absolutely  entitled  to  the  property  so  pur- 
chased: Beecher  v.  Major,  2  Drew.  &  Sm.  431,  13  W.  R.  (L.  C.)  1054. 

A  widowed  mother  is,  it  seems,  a  person  standing  in  such  a  rela- 
tion to  her  child  as  to  raise  the  presumption  in  favour  of  her  child. 
See  Sayre  Y.Hughes,  t)  L.  R.  Eq.  376;  there  Susannah  Barling, 
widow,  after  making  her  will  in  favour  of  her  two  daugh- 
[  *257  ]  ters,  transferred  East  India  Stock  *  which  had  stood  in 
her  own  name,  into  the  names  of  herself  and  her  unmar- 
ried daughter,  and  died.  It  was  held  by  Sir  John  Stuart,  V.-C, 
that  there  was  a  presumption  of  intended  benefit  to  the  unmanned 
daughter,  which  was  unrebutted,  and  that  the  stock  belonged  abso- 
lutely to  her.  "It  has  been  argued,"  said  his  Honor,  '"that  a  mother 
is  not  a  person  bound  to  make  an  advancement  to  her  child,  and 
that  a  widowed  mother  is  not  a  person  standing  in  such  a  relation 
to  her  child  as  to  raise  a  presumption  that  in  a  transaction  of  this 
kind  a  benefit  was  intended  for  the  child.  But  the  case  of  a  stranger 
who  stands  in  loco i)arentis  seems  not  so  strong  as  that  of  a  mother. 
In  the  case  Re  De  Visme  (2  De  G.  Jo.  &  S.  17),  it  was  said  that  a 
mother  does  not  stand  in  such  a  relationship  to  a  child  as  to  raise 
a  presumption  of  benefit  for  the  child.  The  question  in  that  case 
arose  on  a  petition  in  lunacy,  and  it  seems  to  have  been  taken  for 
granted  that  no  presumption  of  benefit  arises  in  the  case  of  a 
mother.  But  maternal  affection,  as  a  motive  of  bounty,  is,  perhaps, 
the  strongest  of  all,  although  the  duty  is  not  so  strong  as  in  the 
case  of  a  father,  inasmuch  as  it  is  the  duty  of  a  father  to  advance 
his  child.  That,  however,  is  a  moral  obligation  and  not  a  legal  one. 
In  Dyer  v.  Dyer,  Eyre,  C.  B.,  shewed  that  the  relationship  between 
parent  and  child  is  only  a  circumstance  of  evidence.  ,  .  .  The  word 
'father'  does  not  occur  in  Lord  Chief  Baron  Eyre's  judgment,  and 
it  is  not  easy  to  understand  why  a  mother  should  be  presumed  to 
be  less  disposed  to  benefit  her  child  in  a  transaction  of  this  kind 
than  a  father. 

This  case  was  followed  by  Batstone  v.  Salter,  19  Eq.  250,  where 
a  lady  had  transferred  stock  into  the  names  of  herself,  her  daughter, 
and  the  daughter's  husband,  and  it  was  held  by  Hall,  V.C.  upon 
the  eidence  that  it  was  the  intention  of  the  lady  to  create  a  beneficial 
interest  in  each  of  the  three  persons  into  whose  name  the  stock  was 
transferred,  and  that  therefore  upon  the  death  of  the  lady  and  her 
daughter,  her  son-in-law  was  entitled  to  the  stock.  Upon  appeal 
316 


DYER  V.  DYER.  *  258 

(reported  10  L.  R.  Ch.  A'pp.  431)  this  decision  was  affirmed  by  Lord 
Cairns,  L.  C,  who  Heoms  rathor  to  bave  decided  the  case  upon  the 
ground  of  a  presumption  of  advancement  than  of  the  evidence  of 
intention  for  his  Lordship  in  giving  judgment  says,  "Whatever 
presum})tion  there  is  in  favour  of  an  unmarried  daughter  in  the  case 
of  a  transfer  to  her,  the  same  presumption  arises  in  this  case,  where 
the  transfer  was  to  a  married  daughter  and  her  husband." 

In  the  recent  case,  however  of  Bennet  v.  Bennet,  10  Ch.  D.  474; 
in  which,  however,  the  case  of  Batstone  v.  Salter  was  not 
cited).  Sir  G.  Jessel,  M.  R,  upon  the  *  evidence,  held  [  *  258  ] 
that  an  advance  from  a  widoived  mother  to  her  son  was 
only  a  loan,  and  he  was  of  opinion  that  the  presumption  of  advance- 
ment does  not  arise  in  the  case  of  a  mother,  though  widowed,  as  in 
the  case  of  a  father;  for  he  observed,  "  that  though  I  should  have  had 
no  hesitation  in  deciding  Saijre  v.  Hughes  (5  L.  R.  Eq.  376),  in  the 
same  way  as  the  Vice-Chancellor  did,  having  regard  to  the  evi- 
dence, I  should  not  have  arrived  at  the  same  conclusion  irrespective 
of  the  evidence.  We  then  arrive  at  this  conclusion:  that  in  the  case 
of  a  mother — that  is,  the  case  of  a  widoived  mother — it  is  easier  to 
prove  a  gift  than  in  the  case  of  a  stranger;  in  the  case  of  a  mother 
very  little  evidence  beyond  the  relationship  is  wanted,  there  being 
very  little  additional  motive  required  to  induce  a  mother  to  make  a 
gift  to  her  child." 

In  a  previous  case  Sir  G.  Jessel,  M.  R.,  decided  that  the  pre- 
siimption  of  a  gift  does  not  arise  in  the  case  of  a  stepmother,  but  he 
seems  there  to  have  been  of  opinion  that  it  did  so  in  the  case  of  a 
mother:   Todd  v.  Moorehousc,  19  L.  R.  Eq.  69,  71. 

The  alteration  in  the  law  by  the  Married  Women's  Property  Act, 
1882  (45  &  46  Vict.  c.  76),  by  Avhich  a  married  woman  having 
separate  property  is  rendered  liable  to  the  maintenance  of  her 
children  (sect.  21),  may  in  case  of  a  purchase  by  her  in  the  name  of 
a  child  give  rise  to  the  presumption  of  advancement. 

Where  a  contract  is  entered  into  to  purchase  real  property  in  the 
name  of  a  wife  or  child,  although  the  wife  or  child  as  volunteers 
could  not  file  a  bill  for  specific  performance  of  the  contract,  never- 
theless, if  the  vendor  enforces,  or  is  entitled  to  payment  out  of  the 
husband's  estate,  the  conveyance  must  be  made  to  the  wife  or  child. 
Redington  v.  Redington,  3  Ridg.  P.  C.  106;  Skidmore  v.  Bradford, 
8.  L.  R.  Eq.  134;  Nicolson  v.  Mulligan,  3  I.  R.  Eq.  308;  and  see 
Dreiu  v.  Martin,  2  H.  &  M.  130.  [This  presumption  of  advance- 
ment may  be  i-ebutted  by  evidence  showing  the  intent  of  the  real 
purchaser  to  secure  a  trust  for  himself:  Reed  v.  Huff,  40  N.  J. 
Eq.  229;  Jackson  v.  Matsdorf,  11  Johns.  96;  Hodgson  v.  Macy,  8 
Ind.  121;  Seibold  v.  Christman,  75  Mo.  308.]  There  an  agreement 
for  the  purchase  of  land  was  entered  into  in  the  names  of  the  hus- 
band and  wife,  and  the  husband  died  before  the  whole  of  the  pur- 
chase-money was  paid.  Upon  an  inquiry  in  an  administration  suit 
as  to  the  real  property  of  the  husband,  it  was  held  by  Sir  W.  Page 

317 


*  259  DYER  V.  DYER. 

Wood,  V.-C,  that  it  did  not  include  the  purchased  estate,  that  the 
purchase  enured  for  the  benefit  of  the  widow,  and  that  the  unpaid 
piircbase-money  was  payable  out  of  the  husband's  personal  estate. 
But  see  now  Locke  King's  Act  Amendment  (30  &  31  Vict.  c..69). 

A  binding  contract  to  purchase  in  the  joint  names  of  a  man  and 
his  wife,  has  been  held  to  entitle  the  wife  to  the  benefit  of  the  pur- 
chase as  survivor:  thus  in  Vance  v.  Vance,  1  Beav.  605,  A.  B. 
gave  directions  to  his  bankers  to  invest  a  sum  of  money  in 
[  *  259  ]  the  joint  names  of  himself  and  his  wife,  and  their  *  brokers 
accordingly  made  the  purchase.  A.  B.  died  after  the  con- 
tract, but  before  the  transfer  had  been  completed.  It  was  held  by 
Lord  Langdale,  M.  K.,  that  the  wife  was  entitled  to  the  stock  by 
survivorship.  See  also  Bailey  v.  Collett,  18  Beav.  181;  Harrison  v. 
Asher,  12  Jur.  834 ;  2  De  G.  «&  Sm.  436. 

The  presumption  of  advancement  also  arises  in  the  case  of  per- 
sonal as  well  as  of  real  property.  As,  for  instance,  where  a  person 
purchases  stock,  and  causes  it  to  be  transferred  into  the  name  of  his 
child  or  wife:  {Crabb  v.  Crabb,  1  My.  &  K.  511;  Sidmouth  v.  Sid- 
tnoidh,  2  Beav.  447;  Bone  \.  Pollard,  24  Beav.  283;  Lorimer  v. 
Lorimer,  10  Ves.  367,  n. ;  Hejyicorth  v.  Hepworth,  11  L.  E.  Eq.  10; 
Fox  V.  Fox,  15  Ir.  Ch.  Rep.  89;  O'Brien  v.  Sheill,  7  I.  R.  Eq.  255); 
[If  a  deed  or  stock  is  taken  in  the  name  of  a  wife  for  the  purpose 
of  defrauding  the  husband's  creditors,  a  trust  will  result  to  the 
husband  so  as  to  make  the  property  liable  for  his  debts.  Belford 
V.  Crane,  1  C.  E.  Green,  265,]  or  married  daughter  and  her  husband, 
Batstone  v.  Salter,  10  L.  R.  Ch.  App,  431.  Also  where  a  husband 
takes  a  deposit  receipt  at  a  bank  in  the  names  of  himself  and  his 
wife,  or  alters  a  deposit  receipt  from  his  own  name  to  the  names  of 
himself  and  his  wife:  Talbot  v.  Cody,  10  I.  R.  Eq.  138,  146;  Gosling 
V.  Gosling,  3  Drew.  335.  So,  also,  in  Ebrand  v.  Dancer,  2  Ch.  Ca. 
26,  a  grandfather  took  bonds  in  the  names  of  his  infant  grand- 
children. The  Lord  Chancellor,  considering  that  the  grandfather 
was  in  loco  parentis  (the  father  being  dead),  said,  "The  grand- 
children are  in  the  immediate  care  of  the  grandfather;  and  if  he 
take  bonds  in  their  names,  or  make  leases  to  them,  it  shall  not  be 
judged  a  trust,  but  a  provision  for  the  grandchildren,  Tinfess  it  be 
•otherwise  declared  at  the  same  time;"  and  decreed  accordingly  on 
that  reason,  though  there  were  other  matters. 

And  it  seems  if  a  father  effects  a  policy  of  assurance  on  the  life 
of  his  son,  a  presumption  would,  in  the  absence  of  evidence  to  the 
contrary,  arise,  that  he  intended  it  to  be  for  his  son's  benefit.  See 
Worthington  v.  Curtis,  1  Ch.  D.  419,  423,  in  which  case,  however, 
the  evidence  showed  that  the  father  effected  the  policy  for  his  own 
benefit. 

Where  a  father  of  a  family,  upon  a  purchase  of  an  estate  being 

.  made  by  the  trustees  of  his  marriage  settlements,  pays  them  a  further 

sum  in  order  to  enable  them  to  complete  such  purchase,  it  will  be 

presumed  that  he  did  so  for  the  benefit  of  all  persons  interested 

318 


DYER  V.  DYER.  *  260 

under  the  settlements:  Ousely  x.  Anstmtfier,  10  Beav.  461;  In  re 
Cnrteis'  Trust,  14  L.  11.  Eq.  217.  [Resultinf:^  trusts  of  this  kind 
have  been  abolishod  by  statuto  in  Minnesota,  Now  York,  "Wisconsin, 
Michigan,  Kentucky,  Maine,  Mass.  and  Ind:  Martin  r.  Martin,  5 
Bush.  47;  Gildowell  r.  Sjiaugh,  2<)  Ind.  ill'J;  Kuth  v.  Oberbruuner, 
40  Wis.  260;  Durfee  v.  Pavitt,  14  Minn.  424.] 

Admission  of  evidence  to  rebut  or  in  support  of  the  presumption  of 
adrancement.^  —  Many  circumstances  of  evidence  have  be^n  taken 
into  consideration  by  different  equity  Judges,  as  rebutting  the 
presumption  of  advancement,  which  have  given  rise  to 
many  *  nice  distinctions,  not  very  easy  to  l)o  understood  ;  [  *  260  ] 
most  of  them,  however,  are  now  disregarded.  Thus,  at  one 
time,  it  was  thought  that  the  infancy  of  a  child,  in  whose  name  a 
purchase  was  made,  was  a  circumstance  against  its  being  considered 
an  advancement;  it  is  now,  however,  considered  a  strong  circum- 
stance in  favour  of  advancement  being  intended;  as  in  Lamp)lugh  v. 
Lamplugh,  1  P.  Wms.  Ill,  where  a  father  made  a  purchase  in  the 
name  of  an  infant  eight  years  old.  Lord  Cotcper  held,  that,  "the  son, 
being  but  eight  years  old,  was  unfit  for  a  trustee,  and  must  be  in- 
tended to  be  named  for  his  own  benefit."  See  also  Mmnma  v. 
Munima,  2  Vern.  19;  FiQich  v.  Finch,  15  Ves.  43;  ChriMt/  v. 
Courtenay,  13  Beav.  96;  Skeats  v.  Skeats,  2  Y.  &  C.  C.  C.  9.  [If  a 
father  purchases  in  the  name  of  an  infant  son,  he  is  its  natural 
guardian,  or  quasi  guardian  and  the  fact  that  he  receives  the  rents 
of  the  estate  does  not  rebut  the  presumption:  Perry  on  Trusts 
Sec.  146;  Paschall  v.  Hinderer,  28  Ohio,  568.] 

And  it  is  clear,  that  the  argument  against  advancement  being  in- 
tended from  the  circumstance  of  the  property  purchased  by  the 
parent  being  reversionary,  and  therefore  not  a  proper  provision  for 
the  child  will  not  prevail,  although  it  has  been  formerly  entertain- 
ed: Rumboll  V.  Rumboll,  2  Eden,  17;  Finch  v.  Finch,  15  Ves.  43  ; 
Murless  v.  Franklin,  1  Swansl.  13;  Williams  v.  Williams,  32  Beav. 
378;  and  see  Pilsworth  v.  Mossc,  14  Jr.  Ch.  Rep.  163. 

The  purchase  by  a  parent  in  the  joint  names  of  himself  and  his 
son,  has  been  objected  to  by  Lord  Hardwicke,  as  a  weaker  case  for 
advancement  than  a  purchase  in  the  name  of  the  son  alone  :  Pole 
V.  Pole,  1  Ves.  76;  and  in  Stileman  v.  Ashdotrn,  2  Atk.  480,  he  said 
that  it  did  not  answer  the  purposes  of  advancement,  as  it  entitled 
the  father  to  the  possession  of  the  whole  till  a  division,  besides  the 
father  taking  a  chance  to  himself  of  being  a  survivor  of  the  other 
moiety:  nay,  if  the  son  had  died  during  his  minority,  the  father 
would  have  been  entitled  to  the  whole,  by  virtue  of  the  survivor- 
ship ;  and  the  son  could  not  have  prevented  it  by  severance,  he 
being  an  infant.  And,  moreover,  that  the  father  might  have  other 
reasons  for  purchasing  in  joint-tenancy,  namely,  to  prevent  dower 
upon  the  estate,  and  oth'i'r  cbiirges. 

It  seems,  however,  clear,  that,  at  the  present  day,  the  objections 

319 


*  261  DYER  V.  DYER. 

of  Lord  Hardwicke  would  have  little  or  no  weight;  for  it  has  been 
repeatedly  held,  that  a  purchase  by  a  parent  in  the  joint  names  of 
himself  and  his  child,  or  by  a  husband  in  the  joint  names  of  him- 
self and  his  wife,  will  be  held  an  advancement  for  the  child  or  wife 
to  the  extent  of  the  interest  vested  in  them  respectively,  but  abso- 
lutely if  either  of  them  respectively  survive  him,  but  if  they  pre- 
decease him,  he  will  take  as  surviving  joint  tenant.  See  Scroope  v. 
Scroope,  1  Ch.  Ca.  27;  Back  v.  A7idreiv,  1  Yern.  120;  Grey  v.  Grey, 
2  Swanst.  599;  Lamplugh  V;  Lampliigh,  1  P.  Wms.  Ill  ; 
[  *  261  ]  Crabh  v.  Crahh,  1  My.  &  *  K.  511;  Dummer  v.  Pitcher,  2 
My.  &  K.  272 ;  Fox  v.  Fox,  15  Ir.  Ch.  Rep.  89.  A  stranger, 
however,  on  a  purchase  by  a  husband,  taking  jointly  with  the  hus- 
band and  wife,  must  hold  the  estate  vested  in  him  in  trust  for  the 
survivor  of  the  husband  and  wife:  In  re  Eykyii's  Trusts,  6  Ch.  D. 
115,  ante,  p.  256,  and  see  Kingdon  v.  Bridges,  2  Vern.  67;  Ru^mboll 
V.  Rumboll,  2  Eden,  17. 

The  principal  case,  overruling  Dickenson  v.  Shaiv  {ante,  p.  240, 
cited),  decides  that  a  grant  of  copyholds,  taken  by  a  father  in  the 
names  of  himself  and  his  sons,  will  be  an  advancement  for  the  sons, 
although,  according  to  the  custom  of  the  manor,  grants  were  made 
for  lives  sttccessu"^.  .^ee  Murless  v.  Franfkin,  1  Swanst.  13;  Finch 
v.  Finch,  15  Ves.  43;  Skeats  v.  Skeats,  2  Y.  &C.  C.  C.  9;  Jeans  v. 
Cooke,  24  Beav.  513,  decided  upon  the  authority  of  the  principal 
case. 

Another  circumstance,  which  has  been  considered  as  an  objection 
against  the  presumption  of  advancement,  is,  that  the  child  has  been 
already  fully  advanced:  in  that  case  he  may,  it  seems,  be  held  a 
trustee  for  the  father.  See  Elliott  v.  Elliott,  2  Ch.  Ca.  231;  Pole  v. 
Pole,  1  Ves.  76;  Grey  v.  Greij,  2  Swanst.  600;  Loyd  v.  Read,  1  P. 
"Wms.  608;  Redington  v.  Redington,  3  Kidg.  P.  C.  190.  The  obser- 
vation, however,  of  the  Lord  Chief  Baron,  in  the  principal  case 
would,  at  the  present  day,  probably  be  considered  a  sufficient 
answer  to  such  an  objection  to  the  presumption  of  advancement. 
"  The  rule  of  equity,"  observes  his  Lordship,  "  as  recognised  in 
other  cases,  is,  that  the  father  is  the  only  judge  on  the  question  of  a 
son's  provision  ;  and  therefore  the  distinction  of  the  son's  being 
provided  for  or  not,  is  not  very  solidly  taken."  See  Redington  v. 
Redington,  3  Ridg.  P.  C.  190.  And  in  Sidmoiith  v.  Sidmotdh,  2 
Beav.  456,  where  it  was  argued  that,  as  the  son  was  adult,  he  ought 
to  be  considered  as  provided  for,  and  therefore  a  trustee  for  his 
father.  Lord  Langdale  held  that  circumstance  to  be  of  no  weight. 
"  The  circumstance,"  said  his  Lordship,  "  that  the  son  was  adult, 
does  not  appear  to  me  to  be  material.  It  is  said  that  no  establish- 
ment was  in  contemplation,  and  that  no  necessity  or  occasion  for 
advancing  the  son  had  occurred  ;  but  in  the  relation  between  parent 
and  child,  it  does  not  appear  to  me  that  any  observation  of  this  kind 
can  have  any  weight.  The  parent  may  judge  for  himself  when  it 
suits  his  own  convenience,  or  when  it  will  be  best  for  his  son,  to 
320 


DYER  V.  DYER.  *  202 

aecuro  liim  any  benefit  which  ho  vohintarily  thinks  fit  to  liestow 
upon  him  ;  and  it  does  not  follow,  that,  because  the  reason  for  do- 
ing it  is  not  known,  there  was  no  intention  to  advance  at  all."  See 
also  Hepivorth  v.  Hepicorth,  11  L.  R.  Eq.  10. 

If  a  child  is  advanced    but  m  '''part  no  implication  [  *  202  ] 
against  advancement  arises  :  Redingfon  v.   Redingfon,  3 
Ridg.  P.  C  100.     And  a  child  will  not  be  considered  as  advanced 
who  has  only  a  reversionary   estate  :  Lampluyh  v.  Lamplugh^  1  P. 
Wms.  111. 

Another  circumstance  is  mentioned  in  the  principal  case,  as  going 
against  the  presumption  of  advancement,  viz.,  the  father's  entering 
into,  and  keeping  possession,  and  taking  the  rents  and  profits  of 
the  purchased  property,  or  the  son's  giving  receipts  in  the  name  of 
the  father  :  in  such  case,  if  the  son  is  an  infant,  the  presumption  of 
advancement  will  not  bo  rebutted,  as  the  acts  of  the  father,  it  is  said, 
may  be  referable  to  his  duty  as  guardian  of  his  son,  and  not  to  an 
assumption  of  ownership  :  Ijoyd  v.  Read,  1  P.  Wms.  008;  Mtimma 
v.  Mamma,  2  Vern.  19;  Alleyne  v.  Alleync,  2  J.  &  L.  544;  Lamplvgh 
v.  Lamplugh,  1  P.  AVms.  Ill;  Stileman  v.  Ashdoioi,  2  Atk.  480; 
Taylor  v.  Taylor,  1  Atk.  380;  George's  Case,  cited  2  Swanst.  600;, 
and  see  Decoy  v.  Devoy,  8  Sm.  &Giff.  408;  Christy  v.  Courtenay,  13 
Beav.  96;  Fox  v.  Fox,  15  Ir.  Ch.  Rep.  89. 

The  Lord  Chief  Baron,  however,  in  the  principal  case,  expresses 
himself  dissaiisfied  with  the  reasoning  which  refers  those  acts  of  the 
father  to  his  guardianship  ;  and  in  Grey  v.  Grey,  2  Swanst,  000, 
Lord  Nottifjgham  observed,  that,  "plainly,  the  reason  of  the  resolu- 
tion stands  not  upon  the  guardianship,  but  upon  the  presumptive 
advancement." 

Even  where  the  son  is  adult,  it  seems  that  similar  acts  of  owner- 
ship by  the  father  will  not  prevent  the  presumption  of  advancement 
from  arising,especially  where  the  son  isadvanced  but  inp)art.  A  lead- 
ing authority  on  this  subject  is  Grey  v.  Grey,  2  Swanst.  299;  S.  C, 
Rep.  t.  Finch,  838.  In  that  case  the  father  received  the  profits  of 
the  estate  purchased  in  the  name  of  his  son  for  twenty  years,  made 
leases,  took  fines,  inclosed  part  of  the  estate  in  a  park,  built  much, 
and  provided  materials  for  more  buildings,  gave  directions  for  a  set- 
tlement, and  treated  for  a  sale  of  the  estate,  yet,  after  all  this,  it  was 
decided  by  Lord  Nottingham,  after  much  consideration,  that  the 
piirchase  by  the  father  in  the  son's  name  was  an  advancement.  "In 
all  cases  whatsoever,"  said  his  Lordship,  "  where  a  trust  shall  be 
between  father  and  son  contrary  to  the  consideration  and  operation 
of  law,  the  same  ought  to  appear  upon  very  plain,  and  coherent,  and 
binding  evidence,  and  not  by  any  argument  or  inference  from  the 
father's  continuing  in  possession  and  receiving  the  profits,  which 
sometimes  the  son  may  not  in  good  manners  contradict,  especially 
where  he  is  advanced  but  in  part  ;  and  if  such  inference  shall  not 
be  made  from  the  father's  perception  of  profits,  it  shall  never  be 
made  from  any  words  between  them  in  common  discourse  :  for, 

21   WHITE  ON   EQUITY.  321 


*  263  DYER  V.  DYER. 

[  *  263  ]  in  *  those  thore  raay  be  great  variety  and  sometimes  ap- 
parent contradiction.  Therefoie,  where  the  proof  is  not 
clear  and  manifest,  the  Coiu't  o^ught  to  follow  the  law,  and  it  is  very 
safe  so  to  do  :"  [If  any  circumstance  accompanying  the  purchase 
explains  why  the  title  is  taken  in  the  name  of  the  child  and  shows 
that  it  was  not  intended  to  be  an  advancement,  but  was  intended  to 
be  a  trust  for  the  father,  the  presumption  of  an  advancement  will 
be  rebutted  and  the  inference  of  a  trust  will  be  established  :  Clark 
V.  Clark,  43  Vt.  685;  Cook  v.  Bremond,  27  Texas,  457;  Gibson  v. 
Foote,  40  Miss.  788;  Balford  v.  Crane,  1  Greene  Ch.  265.]  Rep.  t. 
Finch,  340;  see,  however,  Murlessy.  Franklin,  1  Swanst.  171.  Upon 
the  same  principle,  in  Sidmouth  v.  Sidmouth,  2  Beav.  447,  where 
moueys  were  invested  in  the  funds  by  a  father  in  the  name  of  the 
son,  the  dividends  of  which  were  received  by  the  father  during  his 
life,  under  a  power  of  attorney  from  his  son,  it  was  held,  after  his 
death,  that  this  was  an  advancement,  and  that  the  funds  belonged 
to  the  son. 

Where,  however,  a  son  is  fully  advanced,  the  father's  entering  into 
possession  and  into  the  receipt  of  the  rents  or  profits  of  property 
purchased  in  the  son's  name,  may  be  considered  as  evidence  of  a 
trust.     See  Grey  v.  <?)'ey,  2  Swanst.  600. 

The  presumption  of  advancement  may  be  rebutted  by  evidence  of 
facts  showing  the  father's  intention  that  the  son  should  take  prop- 
erty, purchased  in  his  name,  as  a  trustee,  and  not  for  his  own  ben- 
efit. Such  facts,  however,  must  have  taken  place  antecedently  to,  or 
contemporaneously  with,  the  purchase,  or  else  immediately  after  it, 
so  as  to  form,  in  fact,  part  of  the  same  transaction:  Grey  v.  Grey, 
2  Swanst.  594;  Redington  v.  Redington,  3  Ridg.  P.  C.  106, 177,  194; 
Murless  v.  Franklin,  1  Swanst.  17,  19;  Sidmouth  v.  Sidmouth,  2 
Beav.  447;  Scaivin  v.  Scaivin,  1  Y.  &  C.  C.  C.  65;  Prankerd  v. 
Prankerd,  1  S.  &  S.  1;  Christy  v.  Courtenay,  13  Beav.  26;  Collin- 
son  V.  Collinson,  3  DeG.  Mac.  &  G.  409;  Bone  v.  Pollard,  24  Beav. 
283;  Childers  v.  Childers,  1  De  G.  &  Jo.  482).  [Persons  v.  Per- 
sons, 25  N.  J.  Eq.  250;  Peer  v.  Peer,  3  Stock,  432;  Johnson  v. 
Matsdorf,  11  Johns.  91.]  And  it  seems  that  where  evidence  con- 
temporaneous with  the  transaction  shows  that  the  father  had  an  in- 
tention of  reserving  a  life  interest  in  the  property  to  himself,  or  that 
he  had  an  intention  of  qualifying  the  absolute  right  purported  to  be 
given  to  his  son,  the  presumption  of  advancement  will  be  rebutted : 
Dumper  v.  Dumper,  3  Gift'.  583;  Doivn  v.  Ellis,  35  Beav.  578;  Stock 
V.  M'Avoy,  15  L.  R.  Eq.  55. 

-  But  subsequent  facts  will"  not  be  admissible  in  evidence  to  show 
the  intention  of  the  father  against  the  presumption  of  advancement. 
[After  declarations  of  the  nominal  grantee  may  be  used  against  him 
but  not  in  his  favor.  Perry  on  Trusts,  Sec.  147;  Willard  v.  AVil- 
lard,  56  Pa.  St.  119.]  Thus  a  devise  of  the  property,  as  in  the  prin- 
cipal case  (Munima  v.  Mumma,  2  Vern.  19;  Crabb  v.  Crabb,  1  My. 
&  K   511;  Skeats  v.  Skeats,  2  Y.  «&;  C.  C.  C.  9;  Jeans  v.  Cooke,  24 

322 


DYER  V.  DYER.  *  2G5 

Beav.  513;  Dumper  v.  Dumper,  3  Gi(f.  582;  Williams  v.  Williams, 
32  Beav.  370),  or  a  mortgage  (Pack  v.  Andrew,  2  Vorn.  110),  or  a 
demise  of  copyholds  by  a  licence  obtained  subsequently  to  the  pur- 
chase in  the  name  of  the  child  (Murless  v.  Franklin,  1  Swan^t.  13), 
will  be  ineffectual. 

The  grant  however  would  not  *be  an  advancement,  where  [  *  264  ] 
th?  licence  to  lease  is  obtained,  or  a  surrender  to  the  use  of 
a  will  is  made  at  the  same  Court  as  the  grant:  Siciftx.  Davis,  S  East, 
354,  n. ;  Prankerd  v.  Prankerd,  1  S.  &  S.  1. 

Nor  will  it  be  held  to  be  an  advancement  where  there  is  an  im- 
mediate formal  and  unmistakable  act  of  taking  possession  on  the 
part  of  the  father.  Suppose  for  instance  a  man  bought  a  shop  in 
his  son's  name,  and  immediately  took  possession  and  put  his  own 
name  over  the  door,  that  would  be  an  ostensible  taking  possession 
sufficient  to  show  ownership  in  the  father,  and  trusteeshi]^  in  the 
son:  x)er  Wickens,  V.-C,  in  Stock  v.  M^Avoy,  15  L.  R.  Eq.  59. 

And  where  a  father  soon  after  a  purchase  in  the  name  of  his  son, 
called  on  the  tenant  and  gave  him  notice  to  quit,  although  he  ulti- 
mately allowed  him  to  remain,  it  was  held  by  Sir  J.  Wickens,  Y.-C, 
that  "although  that  circumstance  could  not  perhaps  betaken  as  an 
unmistakable  act  of  taking  possession  by  the  father,  sufficient  to  es- 
tablish that  he  purchased  for  himself,  nevej;theless  it  was  a  circum- 
stance of  great  weight,  and  looking  at  that  and  the  rest  of  the  evi- 
dence, he  was  of  opinion  that  it  was  a  trust  and  not  an  advance- 
ment."    lb.  55,  59. 

The  presumption  of  advancement  may  also  be  rebutted  by  evidence 
of  parol  declarations  of  the  father  contemporaneous  with,  but  not 
by  any  of  his  declarations  made  subsequent  to,  the  purchase:  Elliot 
v.  Elliot,  2  Ch.  Ca.  231;  Woodman  v.  Morrell,  2  Freem.  33;  Birch 
V.  Blagrave,  Amb.  266;  Finch  v.  Finch,  15  Ves.  51;  Pedington  v. 
Redington,  3  Ridg.  P.  C.  106;  Sidmouth  v.  Sidmouth,  2  Beav.  456; 
O'Brien  v.  Sheil,  7  I.  R.  Eq.  255.  But  where  a  person  had  trans- 
ferred stock  into  the  joint  names  of  himself,  wife,  and  child,  and 
had  regularly  received  the  dividends;  Sir  J.  Stuart,  V.-C,  some 
years  after  the  transfer,  received  the  evidence  of  the  husband  and 
wife  as  to  his  intention  at  the  time  of  the  transfer,  in  order  to  repel 
the  presumption  of  advancement:  Devoy  v.  Devoy,  2  Sm.  &  GifiP.  403; 
Forrest  v.  Forrest,  13  W.  R.  (V.-C.  S. ),  380;  sQQslm  Stone y.  Stone, 
3  Jur.  N.  S.  708;  and  the  remarks  on  these  cases  in  0''Brien\.  Sheil, 
7  I.  R.  Eq.  255.     See  also  Williams  v.  Williams,  32  Beav.  370. 

In  Worthington  v.  Curtis,  1  Ch.  D.  419,  a  father  effected  a  policy 
in  the  name  and  on  the  life  of  his  son,  in  which  he  had  no  insurable 
interest,  and  jjaid  the  premiums  and  kept  possession  of  the  policy 
until  his  son's  death,  ten  years  afterwards.  The  son  died,  and  the 
office  paid  the  money  assured  to  the  father  his  administrator,  where- 
upon creditors  of  the  son  tiled  a  bill  against  the  father  for 
the  administration  of  his  *  son's  estate.  It  was  held  by  the  [  *  265] 
Court  of  Appeal,  affirming  the  decision  of  Bacon,  V.-C, 

323 


*  266  DYER  V.  DYER. 

upon  evidence  given  that  the  father  effected  the  insurance  for  his  own 
benefit;  that  although  as  between  the  insurer  and  the  company  the 
policy  was  illegal  and  void  under  14  Geo.  3,  c.  48,  yet  as  t>etween  tbe 
father  and  the  estate  of  the  son  the  father  was  entitled  to  retain  the 
money  for  his  own  benefit.  "  If,"  said  Mellish,  L.  J.,  "the  case  stood 
on  probability,  I  should  have  been  of  opinion  that  the  father  prob- 
ably intended  it  for  his  son's  benefit,  and  that  is  the  presumption  of 
law;  but  on  the  other  hand,  as  it  is  sworn  by  the  father  that  be'af- 
fected  the  policy  on  his  own  account,  and  this  is  confirmed  by  the 
evidence  of  his  wife,  and  as  for  a  period  of  ten  years  he  regulaily 
paid  the  premiums  and  kept  the  policy  in  his  own  possession,  we 
think  there  is  no  sufficient  reason  for  differing  from  the  conclnsion 
arrived  at  by  the  Vice-Chancellor,  that  as  between  the  father  and  the 
son  the  policy  was  the  property  of  the  father.  .  .  .  There  are  two 
reasons  why  the  appeal  must  fail.  First  because  the  Statute  (14 
Geo.  3,  c.  48)  is  a  defence  for  the  Insurance  Company  only,  if  they 
choose  to  avail  themselves  of  it.  If  they  do  not,  the  question  who 
is  entitled  to  the  money  must  be  determined  as  if  the  Statute  did  not 
exist.  The  contract  is  only  made  void  as  between  the  company  and 
the  insurer.  And,  secondly,  if  that  is  not  so,  and  if  the  effect  of  the 
Statute  is  that  the  Court  will  give  no  relief  to  any  party  because  of 
the  illegality  of  the  transaction,  in  that  case  the  maxim  melior  est 
conditio  possidentis,  must  prevail,  and  the  party  who  has  the  money 
must  keep  it." 

A  fortiori,  parol  evidence  may  bo  given  by  the  son  to  show  the 
intention  of  the  father  to  advance  him;  for  such  evidence  is  in  sup- 
port both  of  the  legal  interest  of  the  son  and  of  the  equitable  pro- 
sumption;  Lmnplugh  v.  Lamplugh,  1  P.  Wms.  113;  Redington  v. 
Redington,  3  Ridg.    P.  C.  182;  195;   Taijlor  v.  Taylor,  1  Atk.   386. 

The  acts  and  declarations  of  the  father  subsequent  to  the  pur- 
chase may  be  used  in  evidence  against  him  by  the  son,  although 
they  could  not,  as  we  have  before  seen,  be  used  by  the  father  against 
the  son:  (Redington  v.  Redington,  3  Ridg.  P.  C.  195,  197;  Sid- 
mouth  V.  Sidmouth,  2  Beav.  455;  Stock  v.  M^Avoy,  15  L.  R.  Eq. 
55;)  and  the  better  opinion  seems  to  be,  that  the  subsequent  acts 
and  declarations  of  the  son  can  be  used  against  him  by  the  father 
where  there  is  nothing  showing  the  intention  of  the  father,  at  the 
time  of  the  purchase,  sufficient  to  counteract  the  effect  of  those  de- 
clarations; Sidmoidh  v.  Sidmouth,  2  Beav.  455;  Scaivin  v.  Scaicin, 
1  Y.  &  C.  C.  C.  65;  Pole  v.  Pole,  1  Ves.  76;  Jeans  v. 
[  *266  ]  Cooke,  24  Beav.  521;  see,  *  however,  Murlessw.  Franklin, 
1  Swanst.  20. 

Evidence,  however,  it  seems,  will  not  be  admissible  to  rebut  the 
presumption  of  advancement  where  the  object  of  the  evidence  is  to 
show  that  tbe  person  who  made  the  transfer  intended  it  to  take 
effect  in  fraud  of  the  law.  See  Childers  v.  Childers,  3  K.  &  J.  310; 
there  a  father  conveyed  by  registered  deed  900  acres  of  land  in  the 
Bedford  Level  to  his  son  in  order  to  make  him  eligible  as  a  bailiff. 
324 


DYER  V.  DYER.  *  267 

The  son  shortly  afterwards  died,  without  being  aware  of  the  con- 
veyance, and  without  haviiif^f  been  elected  bailiff.  [If  the  father  or 
husband  pays  the  money  and  takes  the  title  in  the  name  of  his  wife 
or  son  for  the  purpoBo  of  delaying,  hindering  or  defrauding  his 
creditors,  the  conveyance  is  void  and  a  trust  results,  which  cred- 
itors can  enforce  to  the  extent  of  their  debts:  Jencks  v.  Alexander, 
11  Paige,  019;  Newell  v.  Morgan,  2  Harr.  (Del.)  25;  McCartney 
V.  Bostwick,  ;}2  N.  Y.  53;  Crozier  v.  Young,  3  Mon.  158;  Cutter 
V.  Griswold,  Walk.  Ch.  437.]  It  was  held  by  Sir  W.  Page  Wood, 
V.-C,  that  the  gift  was  irrevocable,  and  that  the  heir  of  the  son 
was  entitled  to  it  for  his  own  benetit.  "I  cannot,"  said  his  Honor, 
"allow  the  plaintiff  to  say,  'I  intended  this  deed  to  operate  in  fraud 
of  the  law.'  " 

Bat  evidence  will  be  admissible  if  it  turns  out  that  there  was  no 
such  intention.  Thus  in  the  last  mentioned  case,  upon  the  discov- 
ery of  fresh  evidence  therein — a  letter  to  the  Registrar  of  the  Level 
— the  order  of  the  Vice-Chancellor  was  discharged,  and  leave  was 
given  to  amend  the  bill.  Whereupon  it  was  held  by  the  Lords 
Justices,  upon  the  evidence,  that  neither  the  father  nor  the  Regis- 
trar intended  or  considered  the  transaction  to  have  the  effect  of 
making  the  son  beneficial  owner;  that,  moreover,  on  the  construc- 
tion of  the  Bedford  Level  Act,  a  dry  legal  estate  was  a  suiHcient 
qualification.  And  that,  therefore,  as  there  was  nothing  illegal  in 
the  father's  design,  aud  no  intention  to  represent  the  son  as  bene- 
ficial owner,  the  father  was  entitled  on  the  ground  of  trust  or  mis- 
take or  both  to  have  a  reconveyance  from  the  heir  of  the  son.  See 
Childers  v.  Childers,  1  De  G.  &  Jo.  482. 

So  likewise  a  conveyance  of  property  by  a  father  to  his  son  to 
give  him  a  qualification  to  vote  was  held  not  invalid  but  a  bounty: 
Maif  V.  May,  33  Beav.  81. 

Upon  the  same  principle  in  Davies  v.  Ottij,  35  Beav.  208,  the 
plaintiff,  believing  that  his  wife,  who  had  deserted  him  ten  years 
previously,  was  dead,  married  a  second  time,  and  having  after- 
wards heard  that  his  first  wife  was  living,  and  thinking  that  he  was 
liable  to  be  convicted  for  bigamy,  absolutely  conveyed  his  real  estate 
to  the  defendant  in  consideration  of  20^.  It  was  proved  by  parol 
evidence  that  the  deed  was  executed  in  pursuance  of  an  arrange- 
ment that  the  defendant  should  hold  the  property  at  the  disposal 
of  the  plaintiff.  Ttie  plaintifP's  alarm  was  groundless;  the  consid- 
eration was  never  paid.  The  plaintiff  remained  in  possession,  and 
paid  certain  sums  due  to  a  building  society  in  respect  of  the  prop- 
erty. The  defendant  denied  the  trust,  and  claimed  the 
benefit  of  the  *  Statute  of  Frauds  (29  Car.  2,  c.  3).  It  [  *267  ] 
was  held  by  Sir  John  Romillij,  M.  R.,  that  "the  operation 
of  the  Statute  of  Frauds  was  excluded  by  the  fraud  of  the  defend- 
ant in  refusing  to  reconvey.  And  also  by  reason  of  a  resulting 
trust  within  the  8th  section  of  the  Statute,  his  Honor  said  he  was 
clearly  of  opinion  that  there  was  no  illegality  in  the  transaction, 

325 


*  268  DYER  V.  DYER. 

and  that  the  plaintiff  was  quite  justified,  morally  and  legally,  in 
marrying  the  second  wife,  although  the  effect  of  it  may  have  been 
that  she  did  not  become  his  wife.  The  long  absence  of  his  first 
wife  was  sufficient  to  justify  the  plaintiff'  in  coming  to  the  conclu- 
sion that  she  was  dead."  See  also  Manning  v.  Gill,  13  L.  R.  Eq. 
485;  Haigh  v.  Kaye,  7  L.  R.  Ch.  App.  469. 

As  to  the  presumption  of  advancement  of  a  wife  being  rebutted 
on  a  purchase  by  a  husband  of  stock  in  the  joint  names  of  himself 
and  his  wife,  see  Smith  v.  Warde,  15  Sim.  56,  and  Hoyes  v.  Kivi- 
bersley,  2  Sm.  &  Gift'.  195. 

And  where  it  appears  from  the  evidence  that  a  husband  has  paid 
money  into  a  bank  to  an  account  opened  in  his  wife's  name  as  a 
mere  agency  account,  for  the  purpose  of  convenience,  and  without 
any  contract  or  intention  to  give  the  wife  any  interest  in  such 
money,  it  will  be  the  property  of  the  husband  and  not  of  the  wife. 
(See  Lloyd  v.  Pughe,  8  L.  R.  Ch.  App.  88,  reversing  *S'.  C,  14  L.  R. 
Eq.  241;)  and  any  surrounding  circumstances  may  be  taken  into 
consideration  so.  as  to  rebut  the  presumption  of  advancement  vipon 
transfer  of  a  banjiing  account  by  a  husband  into  the  joint  names  of 
himself  and  his  wife:  Marshal  v.  Crutivell,  20  L.  R.  Eq.  328. 

Where  part  of  the  money  invested  in  stock  by  a  husband  in  the 
name  of  himself  and  his  wife  was  sold  out  by  them,  it  was  held  to 
become  his  property.  Thus,  in  Be  Gadbury,  11  W.  R.  (V.-C.  K. ) 
895,  a  sum  of  money  was  invested  in  the  funds  in  the  joint  names 
of  a  husband  and  wife,  and  she,  by  power  of  attorney  from  him,  sold 
out  a  portion,  and  with  his  knowledge  kept  it  locked  up  in  her  own 
special  custody  until  his  death.  It  was  held  by  Sir  B.  T.  Kinders- 
ley,  V.-C,  that  the  portion  which  remained  in  the  funds  in  the  joint 
names  of  the  husband  and  wife  survived  to  the  wife,  but  that  the  other 
portion,  which  was  sold  out  by  her  and  kept  in  her  custody,  formed, 
on  the  husband's  death,  a  part  of  his  general  personal  estate. 

Purchase  in  the  name  of  a  third  party,  tvhen  void  or  voidable^ — 
Where  an  advancement  is  made  by  a  person  largely  indebted  at  the 
time,  it  will  be  void  under  the  13  Eliz.  c.  5,  as  against  his  creditors: 
[See  Dillard  v.  Dillard,  3  Humph.  41;  Creed  v.  Lancaster  Bank,  1 
Ohio,  1;  Knouff  r.  Thompson,  16  Pa.  St.  357;  Cutler  v.  Tuttle,  19 
N.  J.  Ch.  556.]  (Christy  \.  Coiirte7iay,  IS  Beav.  96,  101;  Bai-rack 
Y.  arCullouch,  3  K.  &  J.  110;  sed  vide  Dreiv  v. 
[  *  268]  *  31arti7i,  2  H.  &  M.  133),  biit  it  is  not  within  27  Eliz.  c. 
4:  Drew  v.  Martin,  2  H.  &M.  130,  133. 

And  where  the  relation  of  client  and  solicitor  subsists  between 
the  parent  and  child,  the  ordinary  presumption  in  favour  of  the 
transaction  being  a  gift,  will  be  excluded,  and  the  burden  of  proof, 
as  to  its  validity,  will  be  thrown  upon  the  son  acting  as  solicitor: 
Garrett  v.  Wilkinson,  2  DeG.  &  Sm.  244;  and  seeFoickes  v.  Pascoe, 
10  L.  R.  Ch.  App.  352. 

Where  a  father  transfers  shares  in  an  incorporated  company  to 
326 


DYER  V.  DYER.  *  2G8 

his  infant  son,  althougjh  tho  son  might  claim  the  fihares  as  an  ad- 
vancement, nevertheless  the  Court  will,  on  the  part  of  the  infant,  re- 
pudiate the  shares^,  if  the  company  be  wound  up,  and  the  father 
will  be  a  contributory  {ReicVs  Case,  24  Boa  v.  818;  Richardson's 
Case,  19  L.  R.  Ei[.  588;  Wcslons'  Case,  5  L.  11.  Ch.  014);  but  where 
the  father  has  ap})lied  for  shares  in  the  name  of  his  sou,  and  al- 
though he  has  paid  a  deposit,  if  the  company  have  refused  to  allow 
him  to  execute  the  deed  on  behalf  of  his  son,  ho  will  not  be  a  con- 
tributory: Maxwell's  Case;  24  Beav.  321. 

\_Doetrine  of  Result mg  Trusts  Restated. — The  doctrine  of  result- 
ing trusts  is,  that  the  man  who  pays  the  purchase-money  is  sup- 
posed to  become,  or  intends  to  become  the  owner  of  the  property, 
and  the  beneficial  title  follows  the  supposed  intention.  This  doc- 
trine is  in  analogy  to  the  common  law  rule  that  where  there  is  a 
feoffment  without  consideration,  the  use  will  result  to  the  feoffer. 

'•  In  all  species  of  resulting  trusts,"  says  Pomeroy,  "  intention  is 
an  essential  element,  although  that  intention  is  never  expressed  by 
any  words  of  direct  creation.  There  must  be  a  transfer,  and  equity 
infers  the  intention  that  the  transferee  was  not  to  receive  and  hold 
the  legal  title  as  the  beneticial  owner,  but  that  a  trust  was  to  arise 
in  favour  of  the  party  whom  equity  would  regard  as  the  beneticial 
owner  under  the  circumstances:"  2  Pom.  Eq.  Jiu'is,  Sec.  1031;  2 
Story's  Eq.  Juris.  Sec.  1195. 

If  two  or  more  persons  furnish  the  money  with  which  to  buy 
property,  in  the  absence  of  proof  there  is  a  presumption  that  joint 
purchasers  paid  equal  amounts:  Shoemaker  v.  Smith,  11  Humph. 
81 ;  but  if  it  appears  that  the  payments  by  the  parties  were  unequal 
the  trust  then  results  to  them  proportionately:  McDonald  v.  Mc- 
Donald, 24  Ind.  08;  Kelley  v.  Jenness,  50  Me.  455;  Baumgartner 
V-  Guesfield,  38  Mo.  30. 

The  doctrine,  however,  is  one  of  presumptive  evidence.  It  is  not 
a  rule  of  law  that  a  trust  must  be  intended  on  such  a  purchase,  but 
it  is  a  reasonable  presumption,  as  a  matter  of  evidence,  in  the  ab- 
sence of  proof  to  the  contrary.  It  is  therefore  the  privilege  of  the 
nominal  purchaser  to  rebut  the  presumption  by  direct  circumstan- 
tial evidence  to  the  contrary.  The  same  rule  applies  to  personal 
property  as  to  realty. 

In  certain  cases  where  the  purchase  has  been  made  in  the  name 
of  another,  there  is  a  presumption  of  advancement  or  provision. 

The  doctrine  of  advancement  is  where  there  is  a  gift  from  a 
parent  to  a  child,  which  is  intended  that  when  the  purchase  money  is 
paid  by  the  parent,  the  conveyance  is  to  be  taken  in  the  name  of  the 
child.  '  It  is  an  exception  to  the  general  doctrine  of  resulting  trusts. 

The  general  rule  in  regard  to  advancements  may  be  stated  to  be 
that  when  a  purchase  is  made  in  the  name  of  a  child  it  will  be  re- 
garded prima  facie  as  an  advancement  and  not  as  a  resulting  trust  for 
the  father.     This  doctrine  is  firmly  established  in  the  I'nited  States. 

327 


270  TOLLET  V.  TOLLET. 


[  *  269]  *TOLLET  'o.  TOLLET, 

De  Term  8.  MichaeUs,  1728. 

[reported  2  p.  WMs.  489.] 

[S.  a,  Mos.  46;  2  Eq.  Ca.  Ab.  233;  pi.  16;  663  pZ.  10.] 

Defective  Execution  of  a  Power  aided.] — Husband  has  a  power 
to  make  a  jointure  to  his  wife  by  deed :  he  does  it  by  ivill,  and 
he  has  no  other  provision ;  equity  will  inake  this  good.  Equity  ic ill 
supply  the  want  of  a  surrender  of  a  copyhold,  in  case  it  be  de- 
vised for  payment  of  debts,  or  for  a  wife,  or  for  younger  children ; 
so  also  ivill  it  help  a  defective  execution  of  a  power ;  but  not  a 
non  execution. 

The  husband,  by  virtue  of  a  settlement  made  upon  him  by  an  an- 
cestor, was  tenant  for  life,  with  remainder  to  his  first  and  other 
sons  in  tail  male,  with  a  power  to  the  husband  to  make  a  jointure 
on  his  wife  by  deed  under  his  hand  and  seal. 

The  husband  having  a  wife,  for  whom  he  had  made  no  provision, 
and  being  in  the  Isle  of  Man,  by  his  last  ivill,  under  his  hand  and 
seal,  devised  part  of  his  lands  within  his  power  to  his  wife  for  her 
life. 

Objection. — This  conveyance,  being  by  a  will,  is  not  warranted 
by  the  power,  which  directs  that  it  should  be  by  deed;  and  a  will 
is  a  voluntary  conveyance,  and,  therefore,  not  to  be  aided  in  a  Court 
of  Equity. 

Sir  Joseph  Jekyll,  M.  K.  —  This  is  a  provision  for  a  wife  who 

had  none  before,  and  within  the  same  reason  as  a  provision  for  a 

child  not  before  provided  for  (a)  ;  and  as  a  Court  of  Equity  would, 

had  this  been  the  case  of  a  copyhold  devised,  have  supplied  the 

want  of  a  surrender;  so  where  there  is  a  defective  exeeu- 

[  *  270  ]  tion  of  the  power,  be  *it  either  for  payment  of  debts  or 

(rt)  Equitable  relief  will  be  granted  although  the  wife  or  child  seeking  it  is 
provided  for.  Vide  Kettle?'.  Townsend,  1  Salk.  187;  Smith  v.  Baker,  1  Atk. 
385;  Hervey  v.  Hervey,  1  Atk.  568  ;  Chaiiinan  v.  Gibson,  o  Bro.  C.  C.  229. 

328 


TOLLET  V.  TOLLET.  *  271 

provision  for  a  wife  or  children  unprovided  for,  I  shall  equally 
supply  any  defect  of  this  nature. 

The  difference  is  betwixt  a  non  execution  and  a  defective  execu- 
tion ofapotcer;  the  latter  will  always  be  aided  in  equity,  under  the 
circumstances  mentioned,  it  being  the  duty  of  every  man  to  pay  his 
debts,  and  a  husband  or  father  to  provide  for  his  wife  or  child. 
But  this  Court  will  not  help  the  non-execution  of  a  power,  since  it 
is  against  the  nature  of  a  power,  which  is  left  to  the  free  will  and 
election  of  the  party  whether  to  execute  or  not;  for  which  reason 
equity  will  not  say  he  shall  execute  it,  or  do  that  for  him  which  he 
does  not  think  tit  to  do  himself. 

And  in  this  case,  the  legal  estate  being  in  trustees,  they  were  de- 
creed to  convey  an  estate  to  the  widow  for  life  in  the  lands  devised 
to  her  by  her  husband's  will. 


Wherever  the  formalities  required  by  a  power  are  not  strictly 
complied  with,  the  appointment  will,  at  law  (unless  made  valid  by 
statute,  see  post,  pp.  288—290),  be  void,  and  the  property  which  is 
the  subject  of  the  power  will  consequently  go  as  in  default  of  ap- 
pointment. Courts  of  Equity,  however,  although  not  holding  the 
power  to  be  well  executed,  will,  in  favour  of  certain  parties,  aid  the 
defective  execution  of  a  power  by  compelling,  as  in  the  principal 
case,  the  person  having  the  legal  interest  to  transfer  it  in  the  man- 
ner pointed  out  by  the  defective  appointment.  The  principle  upon 
which  Courts  of  Equity  act  in  these  cases  is  thus  stated  by  Lord 
Alvanley,  M.  R.,  in  the  case  of  Chapman  v.  Gibson,  3  Bro.  C.  C. 
229;  "i  have  looked,"  said  his  Lordship,  "at  all  the  cases  I  can, 
to  tind  on  what  principle  this  Court  goes  in  supplying  a  defect,  and 
altering  the  legal  right;  it  is  this:  Whenever  a  man,  having  power 
over  an  estate,  whether  ownership  or  not,  in  discharge  of  moral  or 
natural  obligations,  shows  an  intention  to  execute  such  power,  the 
Court  will  operate  upon  the  conscience  of  the  heir  (and  the  result  is 
the  same  in  the  case  of  any  person  entitled  in  default  of  appoint- 
ment), to  make  him  perfect  this  intention."  In  the  same  case  his 
Lordship  remarked,  that  the  execution  of  a  power,  and  a 
surrender  of  a  copyhold,  go  hand  in  hand,  *  precisely  on  [  ^'  271  ] 
the  same  ground."  It  may,  therefore,  be  considered  as  a 
settled  rule,  that  the  Court  interposes  its  aid  upon  the  sarue  princi- 
ples and  under  similar  circumstances  in  cases  of  a  want  of  a  sur- 
render of  copyholds,  and  a  defective  execution  of  a  power.  See  also 
jRogers  v.  Marshall,  17  Ves.  297.  ['"The  principle  upon  which 
relief  in  the  case  of  defective  execution  of  a  power  rests,  is  that 
equity,  will  recognize  a  meritorious  consideration,  and  will  com 
plete  gifts  made  on  such  a  consideration  in  favor  of  a  donor's  in- 

329 


*  272  TOLLET  V.  TOLLET. 

tention   after  death:"     Adams  on  Equity,  98;  Porter  v.  Turner,  3 
S.  &  R.  108;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523.] 

For  forms  of  decrees  supplying  defects  in  execution  of  powers, 
see  2  Set.  Dec.  1255,  4th  ed. 

Surrenders  of  copyholds  to  the  use  of  wills  were  rendei'ed  unnec- 
essary for  the  future  by  55  Geo.  3,  c.  192,  repealed  by  1  Vict.  c. 
26,  which,  however,  substitutes  similar  provisions.  See  sects.  3,  4, 
and  5. 

Althouo-h  there  are  decisions  leading  to  an  opposite  conclusion 
(Rodgers%.  Marshall,  17  Ves.  295;  Ellis  v.  Ninimo,  L.  G.,  temp. 
Snwd.  333),  it  is  now  clearly  setted,  in  accordance  with  the  infer- 
ence which  may  be  drawn  from  the  remark  of  the  Master  of  the 
Rolls  in  the  principal  case,  that  equity  will  not  supply  a  surrender 
in  the  case  of  a  covenant  in  a  deed  at  the  instance  of  per.sons  hav- 
ing merely  a  meritorious  consideration,  any  more  than  it  will  carry 
into  execution  a  voluntary  contract  at  the  instance  of  the  same  per- 
sons. See  Jeffenjs  v.  Jefferijs,  Cr.  &  Pb.  138.  \Yhere  A.  made  a 
voluntary  settlement  of  freeholds  and  covenanted  to  surrender 
copyholds  to  like  uses  for  the  benefit  of  his  daughters.  Lord  Cotten- 
hain,  C,  although  he  made  a  decree  for  carrying  the  settlement  into 
effect  so  far  as  the  freeholds  were  concerned,  refused  to  do  so  so  far 
as  the  copyholds  were  concerned.  "With  respect  to  the  copyholds," 
observed  his  Lordship,  "I  have  no  doubt  that  the  Court  will  not 
execute  a  voluntary  contract;  and  my  impression  is,  that  the  prin- 
ciple of  the  Court  to  withhold  its  assistance  from  a  volunteer  ap- 
plies equally,  whether  he  seeks  to  have  the  benefit  of  a  contract,  a 
covenant  on  a  settlement."  See  also  Tatham  v.  Vernon,  29  Beav.  604. 

Moreover,  since  equity  aids  defective  executions  of  powers  upon 
precisely  the  same  principles,  and  for  and  against  the  same  persons 
as  in  the  case  of  supplying  surrenders  of  copyholds,  it  follows  that 
a  mere  agreement  or  covenant  to  execute  a  power  in  favour  of  per- 
sons claiming  only  upon  a  meritorious  consideration  will  not  be  aided 
in  equity,  unless  an  intention  be  thereby  shown  of  executing  the 
power.  See  Sayer  v.  Sayer,  Innes  v.  Sayer,  7  Hare,  387,  389.  Secus 
where  the  consideration  is  valuable:  (Nandike  v.  Wilkes,  Gilb.  Eq. 
Rep.  114;  Jennings  v.  Moore,  2  Vern.  609:  Coffer  v.  Layer,  2  P. 
AVms.  623;  Price  v.  Price,  14  Beav,  604;  In  re  Dyke's  Estate,  7  L, 
R.  Eq.  337;)  provided  the  agreement  or  covenant  be  valid  and 
binding,  Morgan  v.  Milnian,  3  De  G.  Mac.  &  G.  24.  [In  cases  of 
accident  equity  will  relieve,  if  there  is  a  defective  execution  of 
power,  but  not  where  there  is  a  non- execution,  in  favor  of  a  pur- 
chaser, a  wife,  a  child,  a  creditor,  or  a  charity.  Defects  which  are 
the  very  essence  of  the  power  will  not  be  relieved  against,  but  the 

mere  formal  defects  will.] 
[  *^272  ]        *  As  to  the  classes  in  whose  favour  equity  will  aid  a  defec- 
tive execution  of  a  potver  or  supply  a  surrender.^ — Firs^t, 
equity  will  aid  pw'c/iase?'s:   {Fothergill  y.  Fothergill,  2  Freem.  257; 
Jackson   v.  Jackson,  4  Bro.  C.  C.  462;  Sergeson  v.  Sealey,  2  Atk. 
330 


TOLLET  V.  TOLLET.  *  273 

414;  9  Mod.  890;  TFadc  v.  Paget,  1  Bro.  C.  C.  mS;Burrelly.  Crutch- 
ley,  15  Ves.  544;  Affleck  v.  Affleck, 'f^  Sm.  A:  Gill.  894;  In  re  Dykes' 
Estate,  7  L.  11.  Eq.  887);  and  mortgagees  (Taylor  v.  Wheeler,  2 
Vern.  564;  Jennings  v.  Moore,  2  Vei-n.  ()()9;  The  London  Chartered 
Bank  of  Australia  v.  Lempribre,  4  L.  R.  P.  C.  C  572);  and  lessees 
(Caiiipljell  \.  Leach,  Amb.  740;  Shannon  v.  Bradstreet,  1  S.  &  L. 
52.  Doe  V.  IVY'/fc?-,  7  T.  11.  478;  W'illos,  170;  Doicell  v.  D&w,  1  Y.  & 
C.  C.  C.  345;  King  v.  Roney,  5  Ir.  Cb.  Rop.  04,  72)  [Whore  a  power 
has  been  defectively  executed  equity  will  lend  its  aid  to  piirchasers 
for  value,  lessees,  creditors,  and  mortgiigees:  Beatty  v.  Clark,  20 
Cal.  11;  Love  r.  Mining  Co.,  82  Cal.  058;  King  r.  Roney,  5  Ir.  Cb. 
R.  04;  Hout  V.  Hout,  20  Obio  (N.  S.),  119.]  from  and  of  the  donee; 
mortgagees  and  lessees  being  purchasers  ])ro  tan  to.  And  it  has  been 
laid  down,  "That  in  order  to  constitute  a  pxirchaser  in  whose  favour 
a  defective  execution  of  a  power  can  be  aided,  there  must  bo  a  con- 
sideration and  an  intention  to  purchase,  either  proved  or  to  be  pre- 
sumed:" per  Sir  George  Turner,  V.-C,  9  Hare,  709. 

Secondly,  equity  will  aid  creditors.  Thus,  where  a  person  directed 
his  copyhold  estate  to  be  sold  for  payment  of  debts,  and  died  with- 
out having  surrendered  it  to  the  use  of  his  will,  equity  decreed  the 
surrender  to  be  supplied,  and  the  copyhold  estate  to  be  sold.  See 
'Bixby  V.  Eley,  2  Bro.  C.  C.  325;  ^\  C,  2  Dick.  098;  Ithell  v.  Beane, 
1  Ves.  215;  Tudor  \.  Anson^  2  Ves.  582;  Fothergill  v.  Fothergill,  2 
Freem.  257. 

In  Wilkes  v.  Holmes,  9  Mod.  485,  power  was  given,  in  a  marriage 
settlement,  to  the  husband  and  wife  to  raise  2000Z.  out  of  certain 
lands  of  the  wife's;  and  if  no  part  should  be  raised  in  the  life  of 
the  husband  and  wife,  then  it  should  be  lawful  for  the  survivor  of 
them  by  will  duly  executed,  to  raise  that  sum,  for  the  purpose  of 
paying  the  debts  of  the  husl)and  and  wife,  or  either  of  them,  or 
making  a  provision  for  younger  children.  The  wife,  upon  the  death 
of  the  husband,  defectively  executed  the  power;  it  was  objected, 
that  the  debts  which  were  to  be  paid  by  means  of  the  power  were 
the  debts  of  the  husband,  whereas  the  estate  was  originally  the 
wife's.  However,  Lord  Hardwicke  supplied  the  defect,  observing 
that  the  debts  were  expressly  provided  for  by  the  deed  of  settlement. 
Where,  moreover,  a  person  has  a  general  power  of  appointment 
over  properly  which  in  default  of  ai)pointment  is  given  over,  if  he 
exercises  such  appointment  in  favour  of  volunteers  by  deed,  or  bv 
will,  equity  will  interfere  and  intercept  such  property  in  aid  of  the 
assets  of  the  appointor  for  the  benefit  of  his  creditors,  but 
if  he  does  not  exercise  his  j)ower  equity  *  cannot  inter-  [  *  273  ] 
fere,  and  the  persons  entitled  in  default  of  appointment 
will  take  the  property.  See  Thompson  v.  Toicne,  2  Vern.  319; 
Holmes  v.  Coghill,'l  Ves.  499,  12  Ves.  200;  Fleming  \.  Buchanan, 
3  De  G.  Mac.  &  G.  970.  In  the  case  of  a  married  woman,  see  In 
re  Harvey's  Estate,  18  Ch.  D.  210;  and  the  note  to  Hulme  v.  Ten- 
ant,  post,  and  the  cases  there  cited. 

331 


*  274  TOLLET  V.  TOLLET. 

Thirdly,  charities  will  be  aided.  "I  take,"  says  Lord  Northing- 
ton,  "the  uniform  rule  of  this  Court,  both  before,  at,  and  after  the 
Statute  of  Charitable  Uses  (43  Elizabeth,  c.  4),  to  have  been,  that 
where  the  uses  are  charitable,  and  the  person  has  in  himself  full 
power  to  convey,  the  Court  will  aid  a  defective  conveyance  to  such 
uses":  Attorney -General  v.  Tancred,  1  Eden,  14.  [Equity  will 
aid  persons  who  have  a  meritorious  standing.  In  this  class  is  in- 
cluded a  charity:  Bispham's  Eq.,  Sec.  194;  Pepper's  Will,  1  Par- 
sons' Eq.  436,  446,  451.] 

And  the  intent  of  that  Statute,  it  has  been  said,  "was  to  make  the 
disposition  of  the  party  as  free  and  easy  as  his  mind,  and  not  to  oblige 
him  to  the  observance  of  any  form  or  ceremony."  Attoi^ney -Gene- 
ral \.  Rye,  2  Vern.  453;  see  also  Attorney- General  \.  Burdet,  2  Yern. 
755;  Piggot  \.  Penrice,  Prec.  Ch.  471;  Com.  Rep.  250;  Attorney- 
General  V.  Sibthorpe,  2  Russ.  &  My.  Ill  n.  In  Innes  v.  Sayer  (7 
Hare,  377),  a  testatrix  had  power  to  dispose  of  certain  sums  of  stock 
by  her  last  will  and  testament,  or  any  writing  purporting  to  be  her 
last  will  and  testament,  to  be  by  her  signed  and  published  in  the 
presence  of,  and  attested  by,  two  or  more  credible  witnesses.  The 
testatrix  by  her  will,  dated  in  January,  1833,  unattested,  and  not 
referring  to  the  power,  gave  certain  sums  of  stocks  to  charities  She 
afterwards  made  eight  other  unattested  testamentary  papers,  giving 
legacies,  or  revoking  legacies,  previously  inserted,  the  last  of  which 
papers  was  dated  the  1st  of  September,  1836;  and  at  the  foot  of  it 
she  had  written  as  follows: — "This  will  has  not  been  witnessed,  as  I 
intend,  if  I  am  spared,  to  write  it  out  fair."  The  testatrix  died  in 
June,  1844.  It  was  held  by  Sir  James  \Vigram,  V.-C,  that  the  de- 
fect in  the  execution  of  the  power  oiight  to  be  supplied  in  equity  in 
favour  of  the  charities.  "The  principle,"  said  his  Honor,  "upon 
which  the  Court  appears  to  go  is  this,  that  if  a  person  has  power, 
by  his  own  act,  to  give  property,  and  has,  by  some  paper  or  instru- 
ment, clearly  shown  that  he  intended  to  give  it,  although  that  pa- 
per, by  reason  of  some  informality,  is  ineffectual  for  the  purpose, 
yet  the  party  having  the  power  of  doing  it  by  an  effectual  instru- 
ment, and  having  shown  his  intention  to  do  it,  the  Court  will,  in 
the  case  of  a  charity,  by  its  decree  make  the  instrument  effectual  to 
do  that  which  was  intended  to  be  done.  It  is  not  for  me  to  give 
any  opinion  whether  the  principle  is  right  or  not.  There 
[*  274]  appears  to  be  very  high  authority  *for  the  application  of 
the  principle,  independently  of  the  Statute  of  Charitable 
Uses  (43  Elizabeth,  c.  4),  and  it  has  been  applied  since  the  Statute." 
See  S.  a,  affirmed  on  appeal,  3  Mac.  &  G.  606,  Tudor  on  Charit- 
able Trusts,  p.  37,  255,  2nd  edit. 

The  Statute  of  9  Geo.  2,  c.  36  (commonly  called  the  Statute  of 
Mortmain),  which  requires  certain  solemnities  on  gifts  to  Charitable 
Uses  (see  Tudor  on  Charitable  Trusts,  p.  41,  2nd  edit.),  does  not 
repeal  the  Statute  of  Charitable  Uses  (43  Elizabeth,  c.  4).  It  fol- 
lows, therefore,  that  if  in  an  appointment  to  a  charity  the  solemni- 
332 


TOLLET  V.  TOLLET.  *  275 

ties  imposed  by  9  Goo.  2,  c.  BO,  are  attended  to,  the  gjift  will  oper- 
ate as  an  appointment  under  the  Statute  of  Charitable  Dhcs,  although 
the  instrument  be  not  executed  in  the  manner  required  by  the  in- 
strument creating  the  power.     Sug.  Pow.,  p.  209,  8th  edit. 

Fourthly,  equity  will  aid  a  ivife  and  a  legitimate  child  of  the 
donee  of  the  power,  although  they  claim  merely  as  volunteers,  upon 
a  meritorious  consideration;  as,  for  instance,  upon  a  provision  made 
for  them  after  marriage:  Fothergill  v.  Fothergill^  2  Freem.  257; 
Sarth  V.  Blavfrey,  Gilb.  Eq.  liep.  106;  Sneed  v.  Sneed,  Amb.  64; 
Churchman  v.  Hervey,  Amb.  335;  Medicin  v.  ,'Sandham,  3  Swanst. 
680;  Affleck  v.  Affleck,  3  Sm.  &  Gift".  394;  Proby  v.  Landor,  28 
Beav.  504.  [See  Dennison  v.  Goehring,  7  Barr,  175;  Porter  v. 
Turner,  3  S.  &  R.  114.]  "In  cases,''  says  Lord  Hardwicke,  "of 
aiding  the  defective  execution  of  a  power,  either  for  a  wife  or  a 
child,  whether  the  provision  has  been  for  a  valuable  consideration 
has  never  entered  into  the  view  of  the  Court,  l)ut  being  intended 
for  a  provision,  whether  voluntary  or  not,  has  been  always  held  to 
entitle  this  Court  to  give  aid  to  a  wife  or  child  to  carry  it  into  exe- 
cution, though  defectively  made:"  Hervey  v.  Hervey,  1  Atk.  567; 
Barron  v.  Consfabile,  7  Ir.  Ch.  Rep.  467. 

Although  an  inference  to  the  contrary  might  be  drawn  from  the 
principal  case,  it  is  now  clearly  established  that  a  wife  or  child,  al- 
though provided  for,  will  be  entitled  to  the  aid  of  equity.  "I  am 
of  opinion,"  says  Jjord  Hardwicke,  in  Hervey  v.  Hervey,  "that  the 
rule  as  laid  down  by  the  defendant's  counsel,  that  a  wife  or  child, 
who  comes  for  the  aid  of  this  Court  to  supply  a  defective  execution 
of  a  power,  must  be  entirely  unprovided  for,  is  not  the  right  rule 
of  the  Court.  I  think  the  general  rule,  that  the  husband  or  a  father 
are  the  proper  judges  what  is  a  reasonable  provision  for  a  wife  or 
child,  is  a  good  and  invariable  rule:"  1  Atk.  508;  see  also  Kettle 
v.  Toivnsend,  1  Salk.  187;  Smith  v.  Baker,  1  Atk.  385;  Chapmanx. 
Gibson,  3  Bro.  C.  C.  229.  And  a  defective  execution  will  accord- 
ingly be  executed  in  favour  of  a  child  although  it  may 
place  him  in  abetter  *  condition  than  the  other  children  if  [  *  275  ] 
they  be  otherwise  provided  for,  the  parent  being  considered 
the  best  judge  as  to  the  quantum  of  the  provision.  See  Chapman 
V.  Gibson,  3  Bro.  C.  C.  C.  230;  Hume  v.  Eundell,  6  Madd.  331 ;  Lit- 
cena  v.  Lucena,  5  Beav.  249;  Morse  v.  Martin,  34  Beav.  500. 

To  no  other  persons,  except  a  wife  or  legitimate  child,  will  the 
aid  of  the  Court  be  granted,  upon  the  ground  of  the  provision  being 
for  a  meritorious  consideration;  neither  to  a  husband  (  Watt  v.  Watt, 
3  Ves.  244;  Hoodie  v.  Reid,  1  Madd.  516;  Hughes  v.  Wells,  9  Hare. 
749,  769);  nor  to  a  natural  child  (Fursaker  v.  Robinson,  Prec.  Ch. 
475);  Tudor  v.  Anson,  2  Ves.  582);  [Breit  &  Yeaton,  101  111.  242.] 
nor  to  a  grandchild  (Bland  v.  Bland,  2  Cox,  349;  Pen-y  v.  White- 
head, 6  Ves.  544;  and  1  "VVatk.  Copyh.  136,  138);  nor  to  a  father 
{Sloane  v.  Lord  Cadogan,  App.  to  Sug.  on  Powers,  No.  9,  7th  edit.); 
nor  to  a  mother,  brother,  or  sister   [Goodwyn  v.  Goodicyn,  1  Ves. 

333 


*  276  TOLLET  V.  TOLLET. 

228;  Goring  v.  Nash,  3  Atk.  189,  overruling  Watts  v.  Bullas,  1  P. 
AVms.  60);  nor  to  a  nephew  or  neice  (Strode^.  Riissel,  2  Vern.  621, 
625;  Marston  v.  Goivaii,  3  Bro.  C.  C.  170);  nor  to  a  cousin  {Tudor 
V.  Anson,  2  Ves.  582) ;  nor  to  a  settlor  defectively  executing  a  power 
in  his  own  favour  {Ward  v.  Booth,  cited  3  Ch.  Ca.  69,  92;  Ellison 
v.  Ellison,  post,  273,  6  Ves.  656).  A  fortiori  equity  will  not  afford 
its  aid  to  a  mere  volunteer,  in  noway  related  to  the  person  defectively 
executing  a  power:  Smith  v.  Ashton,  2  Freem.  309;  Sergeson  \. 
Sealey,  2  Atk.  415;  Godwin  v.  Kilsha,  Amb.  684. 

Next,  as  against  ivhom  equity  ivill  aid  a  defective  execution  of  a 
power,  or  supply  a  surrender.'] — It  is  clear,  from  the  principal  case, 
that  aid  will  be  granted  as  against  the  remainderman  who  takes, 
although  by  purchase,  subject  to  the  power  Coventry  v.  Coventry,  2 
P.  Wms.  222;  Shannon  v.  Bradstreet,  1  S.  &  L.  52);  and  ^Iso  in 
general  as  against  an  heir-at-law,  or  customary  heir :  Smith  v.  Ashton, 
1  Ch.  Ca.  263,  264. 

A  defective  execution  of  a  power  has  been  aided  in  equity  in  favour 
of  a  sister  as  against  her  brothers  who  were  provided  for,  and  who 
in  default  of  appointment  would  have  participated  in  the  property : 
Morse  v.  Martin,  34  Beav.  500. 

It  has,  however,  bee  a  a  question  of  much  difficulty,  whether 
equity  will  afford  its  aid  as  against  an  heir  totally  unprovided  for. 
In  Chapman  v.  Gibson,  3  Bro.  C.  C.  229,  Lord  Alvanley  thought 
that  the  heir,  being  a  son  of  the  testator  unprovided  for,  could  not 
be  relieved  against.  "The  principle,"  said  his  Lordship,  "must  be 
this,  that  the  testator  being  under  an  obligation  to  do  an 
[  *  276  ]  act,  we  will  compel  the  heir  to  perfect  it;  but  we  will  ^  not 
compel  him  to  fulfil  an  obligation  at  the  expense  of  another; 
and,  if  the  testator  has  totally  forgot  to  make  any  provision  for  his 
eldest  son,  this  shall  be  an  answer  to  the  claim  of  the  wife,  or  other 
children." 

Lord  Rosslyn,  however,  thought  that  the  Court  ought  never  to 
enter  into  the  consideration  of  the  heir  being  or  not  being  provided 
for.  "I  confess,"  observes  his  Lordship,  "it  appears  to  me,  there  is  no 
ruleat  all,  unless  the  Court  takes  it  upon  the  relation  in  which  they 
stand.  Otherwise  it  is  all  loose  and  arbitrary.  It  never  entered 
into  the  mind  of  the  Court  to  consider  that  argument,  where  the  want 
of  a  surrender  was  to  be  supplied  for  creditors:  but  the  same  sort 
of  argument  might  be  used  there — that  the  heir  was  starving,  the 
creditors  opulent  and  severe.  Those  circumstances  are  not  fit  to  be 
considered  by  the  Court.  The  Coul't  must  go  upon  a  certain  line, 
which  is  very  obvious — that^,  where  the  will  expresses  an  intention 
to  do  that  which  legally  and  morally  the  testator  ought  to  do,  so 
simple  a  form  as  supplying  the  want  of  a  surrender  shall  not  im- 
pede the  performance  of  that  duty:"  Hills  v.  Dotniton,  5  Yes.  564. 
But,  it  was  unnecessary  to  decide  that  point  in  Hills  v.  Doicnton. 
for  the  heiresses-at-law,  against  whom  the  want  of  a  surrender  was 
334 


TOLLET  V.  TOLLET.  *  277 

supplied,  wore  married,  and  therefore  in  Lord  Rosshjyi's  opinion, 
provided  for. 

Lord  Alvanleij,  nevertheless,  still  retained  the  opinion  he  express- 
ed in  Chapman  v.  Gibson.  See  his  observations  on  Hills  v.  DoumUm, 
Siigd.  Pow.  vol.  ii.,  App.  No.  xxiv.,  7th  ed.  In  Braddick  v.  Mattock, 
C  Madd.  863,  Sir  J.  Leach,  V.C,  said,  "This  Court  will  not  supply 
a  surrender  against  the  heir-at-law  unprovided  fcr;  but  it  considers 
the  parent  as  the  best  judge  of  the  provision  of  that  heir,  and  will 
not  examine  the  sufficiency  of  the  provision,  unless  perhaps  in  a 
case  in  which  it  may  be  challenged  as  illusory."  In  Rodgcrs  v. 
Marshall,  17  Ves.  294,  Sir  W.  Grant,  M.  R.,  seemed  inclined  to 
think,  that,  as  against  a  grandchild,  being  the  heir-at  law,  and  un- 
pi'ovided  for,  the  want  of  surrender  ought  not  to  be  supplied,  and 
directed  an  inquiry  as  to  whether  he  was  provided  for.  But  see 
Hills  V.  Doivnton,  5  Ves.  565. 

It  is  clear,  however,  that  a  surrender  will  be  sitpplied  as  against 
a  collateral  heir,  whether  provided  for  or  not;  as  a  person  is  not 
supposed  to  be  under  any  obligation  to  provide  for  a  collateral  heir 
{Fielding  v.  Wimrood,  16  Yes.  90;  see  also  Chapman  v.  Gibsort,  8 
Bro.  C.  C.  2'29;  Smith  v.  Baker,  1  Atk.  385);  and  also  against /<ores 
f actus  (Smith  v.  Baker,  1  Atk.  385). 

It  seems,  moreover,  that  a  defect  in  an  appointment  will  not  be 
supplied  in  favour  of  children  as  against  other  children, 
unless  *  they  are  otherwise  provided  for.     See   Hume  v.   [  *  277  ] 
Rundell,  6  Madd.  331 ;  Lucena  v.  Lticena,  5  Beav.   249  ; 
Morse  v.  Martin,  34  Beav.  500. 

As  to  the  nature  of  a  defect  which  ivill  be  aided.  ]  — It  may  be  laid 
down  as  a  general  rule,  that  where  the  intention  to  execide  a  power 
is  sufficiently  declared,  but  the  act  declaring  the  intention  is  not  an 
execution  of  the  power  in  the  form  prescribed,  there  the  defect  will 
be  supplied  > in  equity:  Shannon  v.  Bradstreet,  1  S.  «fe  L.  63. 
[Equity  will  erect  an  attempted  execution,  but  will  not  supply  an 
execution  if  none  has  been  attempted:  Wilkinson  v.  Getty,  13 
Iowa,  157;  Johnson  v.  Gushing,  15  N.  H.  298;  Howard  v.  Carpen- 
ter, 11  Md.  259;   and  Norcum  v.  D'CEnch,  17,  No.  98.] 

Thus  equity  will  aid  a  defect  which  arises  from  the  instrument 
itself  being  informal  or  inappropriate,  if  the  intention  to  execute 
the  power  appear  clearly  in  writing,  where,  for  instance,  a  donee  of 
a  power  covenants  to  execute  it  (Fothergill  v.  Fothergill,  2  Freem. 
256;  Coventry  v.  Coventry,  Franc.  Max.,  the  last  case;  S.  C,  2  P. 
Wms.  222;  Sergeson  v.  Sealey,  2  Atk.  414;  Sarth  v.  Lord  Blanfrey, 
Gilb.  Eq.  Rep.  166); — or  when,  by  his  will,  he  desires  the  remain- 
dermen to  create  the  estate  authorised  by  the  power  {Vernon  v. 
Vernon,  Amb.  1):  —  or  if  he  enters  into  an  agreement  to  execute  it 
(Shannon  v.  Bradstreet,  1  S.  &.  L.  52;  Mortlock  v.  Buller,  10  Ves. 
292;  Coventnj  v.  Coventrii,  Franc.  Max.,  the  last  case;  Lowry  v. 
Dufferin   1  Ir.  Eq.  Rep.  281;  Doivell  v.  Deiv,  1  Y.  &  C.  C.  C.  345): 

335 


*  278  TOLLET  V.  TOLLET. 

— even  although  he  keep  the  agreemsBt  in  his  own  posession  (King 
V.  Roney,  5  Ir.  Ch.  Eep.  64,  77); — or  if  by  a  mere  writing,  not 
sealed  and  delivered,  he  expresses  an  intention  to  give  property 
which  he  had  power  to  appoint  by  instrument  sealed  and  delivered 
Kennard  v.  Kennard,  8  L.  R.  Ch.  App.  230) — or  if  he  promises  by 
letters  to  grant  an  estate  (Campbell  v.  Leach,  Amb.  740;  Sugd.  on 
Powers,  App.  No.  xxv.,  7th  ed. ;  and  see  Blake  v.  French,  5  Ir.  Ch 
Rep.  246) — or  to  give  a  security  (The  London  Chartered  Bank  of 
Australia  v.  Lempi^ibre,  4  L.  R.  P.  C.  C.  572);  which  he  could 
only  do  by  the  exercise  of  his  power.  So  an  agreement  to  sell 
land  to  a  Railway  Company  at  a  sum  to  be  fixed  by  arbitrators, 
will  be  aided  in  equity  as  an  informal  execution  of  a  general  power 
of  appointment:  In  re  Dykes'"  Estate,  7  L.  R.  Eq.  337.  A  recital 
by  the  donee  of  a  power,  in  the  marriage  settlement  of  one  of  his 
daughters,  who  was  one  of  the  objects  of  the  power,  that  she  was 
entitled  to  a  share  of  a  sum  to  which  she  could  only  be  entitled  by 
his  appointment,  has  been  held  sufficient  evidence  of  his  intention 
to  execute  the  power,  and  was  therefore  aided  as  a  defective  execu- 
tion of  a  power:  Wilson  v.  Piggott,  2  Ves.  jun.  351;  Poulson  v. 
Wellington,  2  P.  Wms.  533.  So  also  where  a  donee  of  a  power,  in 
an  answer  to  a  bill  in  Chancery,  states  that  he  "  appoints, 
[  ^^278  ]  and  intends,  by  *  writing  in  due  form,  to  appoint: "  Car- 
ter v.  Carter,  Mos.  365;  and  see  Fortescue  v.  Gregor,  5 
Ves.  553. 

But  when  a  donee  of  a  power  concurs  in  a  deed  of  settlement,  for 
purposes  unconnected,  with  the  fund  subject  to  the  power,  and  in 
ignorance  of  the  existence  of  the  power,  such  concurrence  will  not 
operate  as  a  defective  exercise  of  the  power  which  would  be  aided 
in  equity,  even  though  the  deed  purported  to  pass  the  fund:  Grif- 
fith Boscawen  v.  Scott,  26  Ch.  D.  358,  362. 

A  parol  contract  to  execute  a  power,  is  void,  as  against  a  remain- 
derman, although,  in  the  case  of  a  parol  contract  to  grant  a  lease 
under  a  power,  the  lessee  may  have  expended  money  in  improve- 
ments, on  the  faith  of  the  parol  contract  (Carter  \.  Carter,  Mos.  370; 
Shannon  V.  Br adstreet,  1  S.  &  L.  72;  Blore  v.  Sutton,  3  Mer.  237; 
Lowry  \.  Lord  Dufferin,  1  Ir.  Eq.  Rep.  281;  and  see  il/o7-gra9i  v. 
Milman,  10  Hare,  279;  3  D.  G.  Mac.  &  G.  24,  32,  33;  a  Fay  v. 
Burke,  8  Ir.  Ch.  Rep.  225);  unless  after  the  death  of  the  tenant 
for  life,  the  remainderman  lie  by  and  suffer  the  lessee  to  continue 
to  improve  the  estate:     Stiles  v.  Coicper,  3  Atk.  692. 

Equity  will  afford  its  aid,  where  there  has  been  a  defective  exe- 
cution by  a  formal  or  appropriate  instrument,  thus  if  the  instru- 
ment, whether  it  be  a  deed  or  will,  is  by  the  power  required  to  be 
executed  in  the  presence  of  a  certain  number  of  witnesses,  and  it  is 
executed  in  the  presence  of  a  smaller  number;  or  if  it  is  required  to 
be  signed  and  sealed,  and  sealing  is  omitted,  equity  will  supply  the 
defect:  Wade  v.  Paget,  1  Bro.  C.  C.  363;  Cockerell  v.  Cholmeley, 
1  Ru88.  &  My.  424;  1  C.  &  F.  60. 
336 


TOLLET  V.  TOLLET.  *  279 

And  in  wills  not  coming  within  the  oporation  of  tlio  Inlo  \\'ill8 
Act  (1  Vict.  c.  26),  an  appointm(>nt  of  per.sonalty  n^qnired  to  be 
attested  by  two  witnesses,  lias  been  aided,  though  attested  by  no 
witness:     Lucena  v.  Lucena,  5  Beav.  249. 

So,  also,  where  a  power  of  appointment  over  land  was  required 
to  be  exercised  by  will  dulij  executed,  and  a  will  was  made  in  exer- 
cise of  the  power,  attested  by  hco  witnesses  only,  Lord  Hardioicke 
was  of  opinion  that  the  will  was  not  duly  executed  within  the 
meaning  of  the  power,  but  that  the  Court  ought  to  aid  the  defective 
execution  in  favour  of  the  creditors  and  younger  children,  consider- 
ing their  claim  as  under  the  settlement,  and  the  mode  of  executing 
the  power  as  depending  on  the  settlement,  and  not  on  the  Statute 
of  Frauds  (29  Cai'.  2.  c,  3),  except  as  the  words  "duly  executed" 
were  construed  by  reference  to  that  statute. 

If  this  had  been  a  voluntary  execution  of  the  power,  and  not  for 
payment  of  debts,  or  for  valuable  or  meritoroius  consider- 
ation it  must  have  stood  on  its  own  *  ground,  and  would  [  *  279  ] 
not  have  been  supported:  Wilkie  v.  Holmes,  1  S.  &  L.  GO, 
n. ;  S.  C.  reported  under  the  name  of  Wilkie  v.  Holme,  1  Dick,  165; 
S.  C.,9  Mod.  485;  and  see  Smith  v.  Ashton,  1  Ch.  Ca.  263;  Morse, 
Martin.,  34  Beav.  500. 

The  law  has  been  altered  by  the  late  Wills  Act  (1  Vict.  c.  26), 
which  enacts  "that  no  will  shall  be  valid  unless  it  shall  be  in  writ- 
ing and  executed  in  manner  thereinafter  mentioned;  that  is  to 
say,  it  shall  be  signed  at  the  foot  or  end  thereof,  by  the  testator,  or 
by  some  other  person  in  his  presence  and  by  his  direction;  and 
such  signature  shall  be  made  or  acknowledged  by  the  testator,  in 
the  presence  of  two  or  more  witnesses  present  at  the  same  time, 
and  such  witnesses  shall  attest  and  shall  subscribe  the  will,  in  the 
presence  of  the  testator,  but  no  form  of  attestation  shall  be  neces- 
sary "  ('sect.  9);  and  "that  no  appointment  made  by  will  in  ex- 
ercise of  any  power  shall  be  valid,  unless  the  same  be  executed  in 
manner  thei'einbefore  required ;  and  everj' will  executed  in  manner 
thereinbefore  required  shall,  so  far  as  respects  the  execution  and 
attestation  thereof,  be  a  valid  execution  of  a  power  of  appointment 
by  will,  notwithstanding  it  shall  have  been  expressly  required  that 
a  will  made  in  exercise  of  such  power  should  be  executed  with  some 
additional  or  other  form  of  execution  or  solemnity  "  (sect.  10). 

Hence  it  has  been  decided  that  although  when  under  a  power  to 
be  executed  "  by  deed  or  will,"  a  mere  memorandum  7iot  testamen- 
tary, in  execution  of  the  power,  may,  by  being  turned  into  a  deed, 
be  aided  in  equity  [Kennard  v.  Kennard,8  L.  R.  Ch.  App.  227), 
nevertheless,  if  the  document  be  testamentary,  if  ii  be  not  executed 
by  two  witnesses  in  accordance  with  the  provisions  of  the  Wills  Act 
(1  Vict.  c.  26),  even  although  as  a  will  made  abroad,  it  be  admitted  to 
probate  under  24  &  25  Vict.  c.  114,  it  will  not  be  so  aided:  In  re 
Kirivan's  Trusts,  25  Ch.  D.  373,  381. 

A  power  will,  as  in  the  principal  case,  be  aided,  if  it  has  been  exe- 

22  WHITE  ON   EQUITY.  337 


*  280  TOLLET  V.  TOLLET. 

cuted  by  a  icill,  when  it  ought  strictly  to  have  been  executed  by 
deed:  Sneed  v.  Sneed,  Amb.  64;  Mills  v.  Mills,  8   Ir.  Eq.  Rep.   192. 

In  Harvey  v.  Hervey,  1  Atk.  561,  Barnard.  103,  a  power  was 
given  to  the  husband  to  make  a  jointure  of  such  of  the  lands  in  a 
deed  as  he  thought  proper,  not  exceeding  600/!.  a  year.  The  hus- 
band by  successive  deeds  charged  all  the  lands  v/ith  rent- charges  ex- 
ceeding 000?.  a  year.  Lord  Hardicicke  supplied  in  favour  of  the 
wife  the  defect  occasioned  by  the  excessive  execution  of  the  power. 
Upon  the  same  principle  in  Barron  v.  Constabile,  1  Ir.  Ch.  Rep. 
467,  where  the  power  was  to  charge  a  jointure  not  exceeding  600Z. 
a  year  by  deed  or  will,  and  the  donee  of  the  power  devised 
[  *  280  ]  instead  of  *charging  a  jointure,  the  devise  was  upheld  as  a 
valid  execution  of  the  power.  See  also  Bruce  v.  Bruce,  11 
L.  R.  Eq.  371. 

But  equity  will  not  aid  a  defective  execution  of  a  power,  if  the  in- 
tention of  the  author  of  the  power  would  be  thereby  defeated. 
Thus,  although  there  is  no  doubt  that  a  Court  of  equity  will  aid  the 
defective  execution  of  a  power  in  favour  of  a  creditor  or  purchaser, 
although  the  donee  be  a  married  woman  {Pollard  v.  Crenmlle,  1  Ch. 
Ca.  10;  Dowell  v.  Deiv,  1  Y.  &  C.  C.'C.  345;  Doe  v.  Weller,  7 1.  R.  480; 
Dilion  V.  Grace,  2  S.  &  L.  446;  Stiad  v.  Nelson,  2  Beav.  245;  The 
London  Chartered  Bank  of  Australia  v.  Lempi'i^re,  4  L.  R.  P.  C.  C. 
572,  overruling  extra-judicial  observations  in  Martin  v.  Mitchell,  2 
J.  &  W.  424),  the  Court,  in  such  cases,  must  be  satisfied  that  the 
formalities  which  have  not  been  observed,  are  no  more  than  matters 
of  form;  and  that  the  donee  of  the  power  has  not  by  their  non- 
observance  been  deprived  of  ary  of  the  protection  which  the  due 
exercise  of  the  power  would  have  aftorded  her.  For  instance,  in 
Reid  V.  Shergold,  10  Ves.  370,  where  a  lady,  entitled  under  a  devise 
to  copyholds  for  life,  with  a  power  to  appoint  them  by  will,  sold  and 
surrendered  them  to  a  purchaser,  Lord  Eldon  held,  that  the  pur- 
chaser could  not  be  aided  in  equity.  "  The  testator,"  said  his  Lord- 
ship, "  did  not  mean  that  she  should  so  execute  her  power — he  in- 
tended that  she  should  give  by  will,  or  not  at  all;  and  it  is  impos- 
sible to  hold  that  the  execution  of  an  instrument  or  deed,  which,  if 
it  availed  to  any  purpose,  must  avail  to  the  destruction  of  that 
power  the  testator  meant  to  remain  capable  of  execution  to  the 
moment  of  her  death,  can  be  considered  in  equity  an  attempt  in  or 
towards  the  execution  of  the  power." 

And  the  Court  looks  with  especial  jealousy  on  any  such  transac- 
tion, in  which  the  wife  may  have  acted  under  the  influence  of  her 
husband:  Hopkins  v.  Myall  (2  Russ.  &  My.  86),  Thackivell  v. 
Gardiner,  5  De  G.  &  Sm.  58  and  Majorihanks  v.  Hovenden,  6  Ir. 
Eq.  Rep.  238. 

So  an  appointment  not  made  within  the  time  prescribed  by  the 
donor  of  the  power  will  not  be  aided  in  Equity,  where  the  time 
within  which  the  appointment  was  to  be  made,  was  not  a  mere 

338 


TOLLET  V.  TOLLET.  *  2bl 

matter  of  form,  but  of  the  substance  and  essence   of  the  power. 
See  Cooper  v.  Martin,  8  L.   R.  Ch.  App.  47. 

Iq  order  that  the  Court  should  be  able  to  rectify  any  informality 
in  the  execution  of  a  power,  it  is  essential,  not  only  that  the  persons 
to  be  benefited,  and  the  amount  of  benefit,  should  be  suliiciontly 
indicated,  but  that  the  intention  to  pass  the  property,  thoutrh  not 
necessarily  under  the  power,  Carver  v.  Richards,  27  Beav. 
488,  *  495)  should  be  clearly  shown  {Buckell  v.  Blenkkorn,  [  *  281  ] 
5  Hare,  131 ;   West  v.  Ray,  Kay,  885). 

Moreover,  the  Court  will  not  aid  a  defective  instrument,  where 
there  does  not  appear  thereby  to  have  been  on  the  part  of  the  do- 
nee a  distinct  intention  to  execute  the  power.  See  Garth  v.  Torrn- 
send,  7  L.  R.  Eq.  220.  There  Mrs.  Gartd,  having  power  to;iy)point 
funds  amongst  her  children  by  deed,  or  by  her  last  will  in  writing, 
or  any  writing  purporting  to  be  or  being  in  the  nature  of  her  last 
will,  or  any  codicil  thereto,  to  be  signed  and  published  in  the  prp's- 
ence  of,  and  to  be  attested  by,  two  credible  witnesses,  died  intestate; 
but  left  in  an  envelope,  addressed  to  her  son,  an  unattested  memor- 
andum (signed  by  herself,  and  dated  eight  years  before  her  death), 
"  For  my  sons  and  daughters.  Not  having  made  a  will,  I  leave 
this  memorandum,  and  hope  my  children  will  be  guided  by  it, 
though  it  is  not  a  legal  document.  The  funds  I  wish  divided  as 
follows"  (and  after  apportioning  the  funds  among  her  children,  and 
making  a  bequest  to  them  out  of  another  fund,  and  a  gift  of  the 
residue,  she  thus  ends  the  memorandum):  "This  paper  contains  my 
last  wishes  and  blessings  upon  my  dear  children,  and  thanks  for 
their  love  to  me."  It  was  held  by  Sir  W.  M.  James,  V.-C,  that  the 
Court  could  not  aid  any  defects  in  the  execution  of  the  memoran- 
dum, so  as  to  give  it  validity  as  an  appointment.  "The  true  test," 
said  his  Honor,  "is  that  mentioned  by  Mr.  Osborne  Morgan :  is  there 
a  distinct  intention  to  execute  the  power?  Now,  here  the  persons 
to  take  and  the  amount  to  be  taken  are  sufficiently  pointed  out,  but 
where  the  instrument  fails  is  in  intention  to  execute  the  poiver.  Mrs. 
Garth  purposely  abstained  from  executing  it.  She  simply  wished 
her  children  to  be  quite  unfettered,  saying,  'I  tell  you  my  wishes, 
but  I  do  not  mean  to  tie  you  up  by  any  legal  document.  I  know  I 
have  power  to  appoint  these  funds,  but  I  do  not  exercise  that 
power.'  The  jurisdiction  of  tlie  Court  is  to  supphj  defects  occa- 
sioned by  mistake  or  inadvertance:  not  to  supjyJy  omissions  intention- 
ally made^ 

But  a  donee  may  have  sufficiently  indicated  a  present  intention 
to  execute  a  power,  although  he  may  in  a  certain  event  express  an 
intention  to  give  the  property  by  a  more  formal  document.  See 
Kennard  v.  Kennard,  8  L.  R.  Ch.  App.  227.  There  a  lady,  having 
•  a  power  of  appointment  by  deed  or  will  over  certain  leasehold  pro- 
perty, which  in  default  of  appointment  was  vested  absolutely  in  her, 
wrote  and  signed  an  unattested  paper,  by  which,  after  referring  to 
the  property  iu  terms  sufficient  to  identify  it,  she  proceeded:  "If  I 

339 


*  283  TOLLET  V.  TOLLET. 

die  suddenly,  I  wish  my  eldest  son  to  have  it.  My  inten- 
[  *  282  ]  tion  is  to  make  it  over  to  him  legally  if  *  my  life  is  spared." 
It  was  held  by  the  Court  of  Appeal,  affirming  the  decision 
of  the  Master  of  the  Rolls,  that  the  memorandum  was  a  defective 
execution  of  the  power  by  the  donee,  and  that  equity  would  relieve 
against  the  defect  in  favour  of  the  eldest  son.  '"She  expresses," 
BHid  James,  L.  J.,  "her  intention  that  her  son  shall  have  the  property 
which  is  the  subject  of  the  power.  ...  In  Garth  v.  Townsend  (7L. 
R.  Eq.  220)  I  considered  that,  upon  the  true  construction  of  the 
instrument,  there  was  no  intention  to  give  the  property,  but  only 
to  request  the  persons  taking  it  in  default  of  appointment  to  make 
a  certain  application  of  it,  without  legally  binding  them  to  do  so." 
And  Mellish,  L.  J.,  observed,  "She  means  in  any  event  to  give  the 
property,  but  to  do  so  by  a  more  formal  instrument  if  her  life  is 
spared." 

Formerly,  when  trustees  under  a  common  power  of  sale  and  ex- 
change sold  an  estate  without  the  timber,  such  exercise  of  the  power 
was  held  not  only  to  be  invalid  at  law  but  also  in  equity,  where  the 
defect  in  the  execution  could  not  be  aided.  Thus,  in  Cockerell  v. 
Cholmeley,  1  Russ.  &  My.  418,  where  an  estate  was  devised  to  a 
trustee  and  his  heirs,  to  the  use  of  A.  for  life,  without  impeachment 
of  waste,  and  a  power  of  sale,  with  the  consent  of  the  tenant  for 
life,  was  given  to  the  trustee,  the  trustee,  with  the  consent  of  the  ten- 
ant for  life,  sold  the  estate  under  the  power,  without  the  timber, 
which  was  to  be  taken  at  a  valuation:  at  law  the  power  was  held  to 
be  badly  executed;  and,  upon  a  bill  being  tiled  in  equity  for  relief 
by  the  purchasers  of  the  estate,  Sir  J.  Leach,  M.  R.,  held,  that  they 
were  entitled  to  none. 

This  case  was,  on  appeal  to  the  House  of  Lords,  affirmed :  2  Russ. 
&  Mv.  751;  6  Bligh,  N.  S.  120;  1  C.  &F.  60;  Cholmeley  v.  Paxton, 
3  Ring.  207;  <S.  C.  nom.  Cockerell  v.  Cholmeley,  10  B.  &  C.  564; 
Cholmeley  v.  Paxton,  5  Ring.  48;  and  see  Sugd.  Prop.  491.  See, 
also,  Adney  v.  Field,  Amb.  654;  Stratford  v.  Lord  Aldborough,  1 
Rigd.  281;  Scott  v.  Davis,  4  My.  &  Cr.  87. 

Upon  the  same  principal,  the  sale  of  the  surface  of  land  under 
the  ordinary  power  of  sale,  reserving  the  minerals,  has  been  held 
to  be  invalid:  Buckley  y.  Howell,  29  Beav.  546;  and  see  Article  7, 
Jur.  N.  S.,  part  2,  235. 

However,  by  the  Property  and  Trustees  Relief  Amendment  Act 
(22  &  23  Viet.  c.  35),  where  under  a  power  of  sale  a  bona  fide  sale 
shall  have  been  made  of  an  estate  with  the  timber  thereon,  or  any 
other  articles  attached  thereto,  and  the  tenant  for  life,  or  any  other 
party  to  the  transaction,  shall  by  mistake  be  allowed  to  receive  for 
his  own  benefit  a  portion  of  the  purchase-money  as  the  value 
of  the  timber  or  other  articles,  the  Court  of  Chancery, 
[  *  283  ]  *  upon  payment  of  the  full  value  of  the  timber  or  other 
articles,  at  the  time  of  the  sale,  with  interest,  and  the  set- 
tlement thereof,  may  declare  the  sale  valid,  and  thereupon  the  legal 
340 


TOLLET  V.  TOLLET.  *  284 

estate  is  to  vest  as  if  tlio  power  had  been  duly  executed  (sect. 
13). 

Under  the  Settled  Estates  Act  (19  &  20  Vict.  c.  120),  the  Court 
may  authorise  a  sale  of  timber  (not  being  ornamental  timber), 
apart  from  the  surface  (In  re  Malliri's  Settled  Estate,  9  W.  R. 
(V.-C.  S.)  588;  Re  Law,  7  Jur.  (N.  S.)  511;  see  sect.  11);  and  on  a 
sale  of  mines  apart  from  the  surface,  with  rights  of  using  the  sur 
face  for  the  workings,  may  reserve  a  rent  in  respect  of  the  surface 
damage  from  time  to  time:  In  re  Milicard's  Estate,  C  L.  R.  Eq. 
248.  Moreover,  on  the  sale  of  any  laud  under  the  Act,  "Any 
earth,  coal,  stone,  or  mineral,  may  be  excepted"  (sect.  13). 

This  Act  has  been  repealed,  and  in  effect  re-enacted  by  the  Set- 
tled Estates  Act,  1877  (40  &  41  Vict.  c.  18),  ss  16  and  19. 

By  the  Confirmation  of  Sales  Act  (25  &  26  Vict.  c.  108),  no  sale, 
exchange,  partition,  or  enfranchisement  made  in  exercise  of  a  trust 
or  power  not  foi  bidding  the  exception  or  reservation  of  minerals  is 
to  be  invalid  (unless  already  declared  to  bo  so,  or  there  is  a  suit 
pending),  on  the  ground  only  that  the  trust  or  power  did  not  ex- 
pressly authorise  an  exception  or  reservation  of  minerals  wbich  has 
been  made  (sect.  1);  and  hereafter  such  exception  or  reservation 
may  be  made  by  trustees  and  others,  with  the  sanction  of  the  Court 
of  Chancery,  to  be  obtained  on  petition  (sect.  2).  The  Act  does 
not,  however,  extend  to  Ireland  or  Scotland  (sect.  3). 

Mortgagees  are  within  the  Confirmation  of  Sales  Act,  and  may, 
even  after  a  bill  filed  for  foreclosure  {In  re  Wilkinson'' s  Mortgaged 
Estates,  13  L.  R.  Eq.,034)  have  liberty  to  sell  under  their  power  of 
sale,  with  a  reservation  of  the  mines  and  minerals  in  the  land  sold, 
and  incidental  powers  of  working  them;  and  it  is  not  necessary  for 
mortgagees,  in  order  to  exercise  the  power  of  selling  with  such  a 
reservation,  to  serve  the  petition  on  any  subsequent  incumbrancer; 
In  re  BeaumonVs  Mortgage   Trusts,  12  L.  R.  Eq.,  80. 

The  Court  has  power,  under  the  Confirmation  of  Sales  Act  (25  & 
26  Vict.  c.  108),  to  give  a  general  direction  that  persons  having 
powers  of  sale  and  exchange  in  a  settlement  or  will,  which  do  not 
expressly  authorise  the  reservation  of  mines  and  minerals  on  a  sale 
of  the  settled  property,  or  a  sale  of  minerals  apart  from  the  land, 
may  exercise  the  powers,  as  if  they  did  authorise  such  reservation 
or  separation;  In  re  Wynn\s  Devised  Estates,  16  L.  R.  Eq.,  237. 

And  the  Court  may  make  an  order  on  petition,  author- 
ising *sales  of  land  apart  from  minerals   generally,  and  [  *  284  ] 
without  reference  to  any    particular  sale;  Ee  Wilhcay^s 
Trusts,  32  L.  J.  Ch.  226;  Lire  Wymi,  16  L.  R.  Eq.  237. 

Cestuis  que  trust  ought  to  be  made  parties  to  any  application 
under  the  Confirmation  of  Sales  Act  (25  &  26  Vict.  c.  108,  s.  2)  for 
Bale  of  the  surface,  apart  from  the  minerals  (In  re  Palmer's  Will, 
13  L.  R.  Eq.  408;  and  see  In  re  Broirn's  Trust  Estate,  9  Jur.  (N. 
S.)  349;  11  W.  R.  19).  But  it  has  been  held  that  where  trustees 
of  settled  land  with  power  of  sale,  exercisable  with  consent  of  the 

341 


*  285  TOLLET  V.  TOLLET. 

tenant  for  life,  present  a  petition  under  that  Act,  for  leave  to  sell 
the  land  and  minerals  separately,  it  need  not  be  served  on  the 
beneficiaries  entitled  in  remainder;  In  re  Pry  SB's  Estates,  10  L.  R. 
Eq.  531;  In  re  NagWs  Trusts,  G  Ch.  D.  104 

Under  the  Settled  land  Act,  1882  (45  k  46  Vict.  c.  38),  this  ob- 
ject may  now  be  obtained  without  any  application  to  the  Court. 
8ee  s.  17,  which  enacts  that  "a  sale,  exchange,  partition  or  mining 
lease  may  be  made  either  of  land,  with  or  without  an  exception  or 
reservation  of  all  or  any  of  the  mines  and  minerals  therein,  or  of 
any  mines  and  minerals  therein,  or  of  any  mines  and  minerals,  and 
in  any  such  case  with  or  without  a  grant  or  reservation  of  powers 
of  working,  wayleaves  or  rights  of  way,  rights  of  water  and  drain- 
age, and  other  powers,  easements,  rights  and  privileges  for  or  in- 
cident to  or  connected  with  mining  purposes,  in  relation  to  the  set- 
tled land,  or  any  part  thereof,  or  any  other  land.  (1.)  An  exchange 
or  partition  may  be  made  subject  to  and  in  consideration  of  the  res- 
ervation of  an  undivided  share  in  mines  or  minerals. 

(2.)  It  seems  that  trustees  may,  under  this  section,  during  a 
minority,  sell  the  surface  apart  from  minerals,  though  this  is  not 
authorised  by  the  power  of  sale  in  the  settlement,  and  the  sale  being 
under  the  statutory  power  the  consent  of  guardians  required  by  the 
settlement  powers  is  not  necessary:  The  Settled  Land  Act,  by 
Wolsten.  &  T.,  p.  31,  citing  In  re  Duke  of  Newcastle's  Estates,  24 
Ch.  D.  129. 

Lastly  as  to  what  powers  will  be  aided.) — There  is  no  doubt  that 
powers  of  jointuring,  of  raising  portions,  of  sale,  of  revoking  uses 
and  generally  appointing  an  estate,  will,  if  defectively  executed,  be 
aided. 

Although  it  was  at  one  time  a  subject  of  doubt,  it  seems  now  tu 
be  settled  that,  independently  of  the  statutory  aid  hereafter  men- 
tioned, defective  appointments  under  powers  of  leasing  will  be 
aided  as  against  the  remainderman.  See  Shannon  v.  Bradstreet,  1 
S.  &  L.  52.  There  Lord  Redesdale  held  a  contract  to  grant 
[  *  285  ]  a  lease  by  a  tenant  for  life,  according  to  a  power,  *binding 
upon  a  remainderman,  although  it  was  objected  that  a 
leasing  power  differs  from  other  powers,  inasmuch  as  in  other  pow- 
ers the  remainderman  has  no  interest  in  the  mode  in  which  the 
power  is  executed,  as  he  claims  nothing  under  it,  but  that  under  the 
leasing  power  he  claims  the  rent  reserved.  "On  what  ground," 
said  his  Lordship,  "can  it  be  contended  that  that  which  is  a  mere 
charge  upon  a  remainderman  is  to  receive  a  more  liberal  construc- 
tion than  what  is  not  a  mere  charge  upon  him,  but  may  be  much  for 
his  benefit  ?  In  the  case  of  powers  to  make  leases  at  the  best  rent 
that  can  be  obtained,  it  is  evident  that  the  author  of  the  power 
looks  to  the  benefit  of  the  estate,  and  that  the  power  is  given  for  the 
benefit  both  of  the  tenant  for  life  and  of  all  persons  claiming  after 
him :  for  where  the  tenant  for  life  can  give  no  permanent  interest, 
342 


TOLLET  V.  TOLLET.  *  2SG 

and  his  tenant  is  liable  every  day  to  be  turned  out  of  possession 
by  the  accident  of  his  death,  it  is  hard  to  procure  substantial  tenants; 
and  therefore  it  is  beneficial  to  all  parties  that  the  tenant  for  life 

should  have  a  power  to  grant  such  leases This,  there 

fore,  is  a  power  which  is  calculated  for  the  benefit  of  the  estate. 
Other  powers,  generally  speaking,  such  as  jointuring  powers,  and 
powers  to  make  provisions  for  younger  children,  are  calculated  for 
the  benefit  of  the  family;  they  may  be  indirectly  beneficial  to  the 
remainderman,  in  some  respects,  but  they  are  no  direct  benefit  to 
him;  nor  can  I  conceive  why  these  powers  should  be  construed 
more  liberally  than  powers  to  make  leases,  except  where  it  is  evi- 
dent that  such  power  is  abused;  and  in  case  of  letting  leases,  the 
power  is  certainly  more  liable  to  bo  abused  than  in  making  pro- 
visions for  wife  or  children.  In  these  latter  cases,  the  sum  to  be 
raised  is  generally  limited,  and  cannot  be  exceeded;  but  a  power 
of  leasing  is,  to  a  certain  extent,  a  power  of  charging;  if  a  fine  is 
taken,  it  is  unquestionably  so;  and  even  where  no  fine  can  be  taken, 
it  is,  to  a  certain  degree,a  charge,and  for  the  benefit  of  tenant  for  life 
as  well  as  the  remainderman,  for  tenant  for  life  will  get  a  better  rent 
than  if  be  had  no  such  power.  I  cannot  conceive,  therefore,  what 
distinction  there  is  between  a  leasing  power  and  the  other  powers 
before  noticed;  they  are  all  powers  given  to  the  tenant  for  life  for 
his  benefit,  to  enable  him  to  charge  the  estate;  and  in  case  of  a  rack- 
rent,  the  power  of  leasing  is  also  a  benefit  to  the  remainderman. 
Now,  in  case  of  a  jointuring  power,  and  in  all  the  other  cases,  a  con- 
tract has  been  held  sufficient  to  enable  a  party  to  have  the  power 
executed  in  equity."  See  also  Doe  v.  Weller,  7  Term.  Eep.  478; 
Willes,  176;  r  Clark  v.  Smith,  9  C.  &  F.  126,  141;  and 
Dowell  V.  Dew,  1  Y.  &  C.  C.  C.  345,  where  *an  agreement  [  *  286  ] 
to  grant  a  lease  was  held  binding  as  against  a  feme  covert, 
as  being  a  defective  execution  of  her  power  of  leasing. 

In  dTuhs  v.  Harford,  22  Ch.  D.  128,  by  a  will  devising  land  in 
strict  settlement,  powers  of  granting  building  leases  were  given  to 
any  tenant  for  life  and  to  trustees  during  the  minority  of  any  tenant 
in  tail.  The  tenant  for  life,  in  pursuance  of  his  power,  entered  into 
a  contract  to  grant  a  building  lease,  but  died  without  executing  it, 
and  was  succeeded  by  an  infant  tenant  in  tail.  It  was  held  by  C kitty, 
J.,  that  the  trustees  had  power  to  effectuate  the  contract  of  the  tenant 
for  life  by  executing  a  lease.  See  now  Settled  Land  Act,  1882,  s.  12. 
But  equity  will  not  aid  a  defect  even  in  favour  of  purchasers,  if 
the  execution  of  the  power  would  involve  a  breach  of  trust  {Mortlock 
V.  Buller,  10  Ves.  292;  Stratford  v.  Lord  Aldborough,  1  Eidg.  281; 
Ord  V.  Noel,  5  Madd.  438;  Bellringer  v.  Blagrare,  1  De  G.  &  Sm. 
63);  or  would  be  a  fraud  upon  the  power  {Harnett  v.  Yielding,  2 
S.  &  L.  549) ;  but  it  has  been  doubted  whether  in  the  latter  cas-e  the 
contract  should  not  have  been  enforced  so  far  as  the  lessor  could 
legally  execute  the  power:  Dyas  v.  Cruise,  2  J.  &  L.  4G0. 

And  a  power  of  leasing  will  not  be  aided  where  the  best  rent  has 

343 


*  287  TOLLET  V.  TOLLET. 

not  been  reserved,  or  a  fine  has  been  paid,  contrary  to  the  requisi- 
tions of  the  power,  or  where  there  has  been  an  agreement  or  cove- 
nant to  grant  a  lease,  commencing  in  future,  where  the  power  author- 
ises only  leases  in  possession,  and  the  donee  has  died  before  the  es- 
tate fell  into  possession  {Catnjjbell  v.  Leach,  Amb.  740;  Shannon  v. 
Bradstreet,  1  S.  &  L.  52;  Doe  v.  Weller,  7  Term.  Kep.  478:  "Willes, 
176;  Dotcell  v.  Dew,  1  Y.  &  C.  C.  C.  345,  356;  Temple  v.  Baltinglass, 
Rep.  t.  Finch.  271).  But  if  the  donee,  after  agreeing  to  grant  a 
lease  in  future,  lives  until  the  estate  falls  into  possession  by  the  ex- 
piration of  a  foi'mer  lease,  the  agreement  will  be  held  in  equity  a 
valid  execution  of  the  power:  Dowell  v.  Dew,  1  Y.  &  C  C.  C.  345. 

It  seems  that  when  the  question  is  raised,  whether  the  rent  reserved 
is  adequate  or  not.  Courts  of  equity  will  not  decline  to  aid  the  im- 
perfect execution  of  the  power  of  leasing,  unless  the  rent  be  so  low 
as  to  afford  evidence  of  fraud :  King  v.  Roney,  5  Ir.  Ch.  Rep.  64,  77. 

Where  unusual  and  unheard  of  covenants  were  introduced  into  the 
lease,  the  Court  refused  to  aid  a  lease  purporting  to  have  been 
granted  in  execution  of  a  power  to  grant  leases  containing  •'  usual 
and  reasonable  covenants:"  Mechvin  v.  Sanham,  3  Swanst.  685. 

If  a  tenant  for  life  has  power  to  lease,  with  the  consent 
[  *  287  ]  of  trustees  or  others,  an  agreement  by  the  *  tenant  for  life 
alone  to  lease  will  not  be  aided:  Lawrenson  v.  Butler,  1  S. 
&  L.  13.  In  Shannon  v.  Bradstreet,  1  S.  &  L.  52,  where  a  tenant 
for  life,  with  power  to  grant  leases  "  in  possession,  and  not  in  rever- 
sion," entered  into  an  agreement  to  grant  a  lease  a  day  or  two  before 
the  lease  was  to  commence,  the  tenant  for  life  having  survived  that 
time,  no  objection  arose,  and  the  agreement  was  held  by  Lord  Redes- 
dale  to  be  binding  upon  the  remainderman.  See  also  Dowell  v.  Deiv, 
1  Y.  &  C.  C.  C.  345. 

In  order  to  bind  the  remainderman,  there  must  be  a  valid  and 
binding  contract  to  lease  (Morgan  v.  Milman,  3  De  G.  Mac.  &  G. 
24);  but  even  if  it  were  not  l>inding  under  the  Statute  of  Frauds 
(20  Car.  2,  c.  3),  if  after  the  death  of  the  tenant  for  life,  being 
donee  of  the  power,  the  remainderman  lay  by  and  allowed  acts  of 
part  performance  and  expenditure  of  money  on  the  premises  by 
the  lessees,  the  agreement  would  be  enforced  against  him  (Stiles  v. 
Coicper,  3  Atk.  692;  Shannon  v.  Bradstreet,  1  S.  &  L.  73);  but  this 
would  not  be  the  case  if  such  acte  of  part  perfoi'mance  or  expendi- 
ture had  only  been  allowed  by  the  tenant  for  life:  Morgan  v.  Mil- 
man,  3  De  G.  Mac.  &  G.  24. 

Nor  can  the  lessee,  in  the  absence  of  a  covenant  for  quiet  en- 
joyment or  the  like  on  the  part  of  the  tenant  for  life,  enforce  any 
claim  against  his  estate  by  way  of  damages  (Blore  v.  Sutton,  3  Mer. 
237;  Stamford  v.  Omly,  1  S.  &  L.  65  cited),  though  he  may  do  so 
under  such  covenant:    Vernon  v.  Lord  Egremont,  1  Bl.  (N.  S.)  554. 

Although  the  Covirt  is  unable  to  decree  specific  performance  of  a 
lease  against  the  remainderman  in  consequence  of  the  best  rent  not 
having  been  reserved  according  to  the  requirement  of  the  power  by 
344 


TOLLET  V.  TOLLET.  ^         *  288 

the  doneo  being  tenant  for  life,  nevortholess,  in  the  absence  of 
fraud,  and  there  being  a  ])onulide  intention  to  execute  the  power, 
the  interest  of  the  tenant  for  Hfe  may  be  bound  to  the  extent  lie 
was  able  to  bind  it,  unless  there  was  some  inconvenience  in  making 
a  decree  for  partial  performance  of  the  contract:  Dyas  v.  Cruise,  2 
J.  &  L.  400;  Graham  v.  Oliver,  3  Beav.  128;  Lawrenson  v.  Butler, 
1  S.  &  L.  19;  Doe  d.  Bromley  v.  Bettison,  12  East,  305.  Sed  vide 
Harnett  v.  Yielding,  2  S.  &  L.  549. 

And  a  purchaser  under  a  power  of  sale  from  a  tenant  for  life,  with 
notice  of  an  agreement  to  lease  under  a  power,  is  bound  to  perform 
it  in  the  same  manner  as  the  vendor  was:  Taylor  v.  Stibbert,  2  Yes. 
jun.  437. 

A  Court  of  equity  will  not  grant  its  aid  where  there  is  a  defect 
in  the  execution  of  a  power  under  and  Act  of  Parliament,  which 
must  always  be  taken  strictly;  thus,  where  a  tenant  in  tail  made  a 
lease  for  years,  not  authorised  by  32  Hen.  8,  c.  28  (re- 
pealed by  *  19  &  20  Vict.  e.  120,  s.  35,  since  repealed  by  [*288  ] 
40  &  41  Vict.  c.  18,  8.  58),  equity  would  not  make  good 
the  defect:  RosiveWs  Case,  per  Hutton,  Ro.  Abr.  379,  fol.  6.  See 
also  Cowp.  2G7;  2  Burr.  1146;  Anon.,  2  Freem.  224. 

Non-execution  of  a  power.  ^ — We  must,  however,  distinguish  be- 
tween the  defective  execution  and  the  non- execution  of  a  power, 
for  a  non-execution  of  a  power  will  not  be  aided:  a  person,  for  in- 
stance, is  not  entitled  to  the  aid  of  the  Court  on  the  ground  of  the 
execution  of  the  power  having  been  prevented  by  accident  or  by 
the  sudden  death  of  the  donee:  Piggott  v.  Penrice,  Com.  250;  Gilb. 
Eq.  Rep.  138.  So,  disability  to  sign  from  gout  has  not  been  aided: 
Blockvill  V.  Ascott,  2  Eq.  Ca.  Abr.  659,  n. ;  and  see  Buckcll  \.  Blenk- 
horn,  5  Hare,  131.  So  the  non-execution  of  a  power  through  mis- 
take will  not  be  aided;  as,  for  instance,  where  a  donee  under  a 
mistaken  apprehension  that  certain  persons  whom  he  desired  to 
benefit  would  take  on  his  leaving  the  power  unexecuted,  for  in  such 
case  the  expressed  intention  is  not  to  make  any  appointment: 
Langslotv  v.  Langsloiv,  21  Beav.  553. 

AVe  may,  however,  except  those  cases  in  which  the  execution  of 
a  power  has  been  prevented  by  fraud,  as  where  the  deed  creating 
the  power  has  been  fraudulently  retained  by  the  person  interested 
in  its  non-execution,  for  then  it  seems  equity  will  afford  its  aid:  3 
Ch.  Ca.  83,  84,  122;  Ward  v.  Booth,  cited  3"Ch.  Ca.  69.  See,  also, 
Piggott  V.  Penrice,  Prec.  Ch.  471;  Vane  v.  Fletcher,  1  P.  Wms. 
354;  Luttrell  v.  Olmius,  cited  11  Ves.  683;  Seagrave  v.  Kincan,  1 
Beat.  157;  Bulkley  v.  Wilford,  2  C.  &  F.  102;  Middletonx.  Middle- 
ton,  1  J.  &.  W.  94. 

Defects  in  the  execution  of  powers  cured  by  8tatute.^^ — The  legisla- 
ture has  extended  the  remedies  of  lessees  by  the  Act  for  granting 
reliefs  against  defects  in  leases  made  under  power  of  leasing  in  certain 

345 


*  289  TOLLET  V.  TOLLET. 

cases  (12  &  13  Vict.  c.  26),  suspended  in  its  operation  by  a  subse- 
quent Act  in  the  same  session  (12  &  13  Vict.  c.  110)  until  the  1st 
of  June,  1850,  and  amended  by  13  &  14  Vict.  c.  17,  repealing  sect. 
3,  and  by  "The  Statute  Law  Rev.  Act,"  1875  (38  &  39  Vict.  c.  06). 
repealing  the  latter  part  of  sect.  7  and  the  whole  of  sect.  9  of  12 
&  13  Vict.  c.  26,  and  sects.  1  and  4  of  13  &  14  Vict.  c.  17.  As  to 
decisions  under  these  acts,  see  Ex  parte  Cooper,  34  L.  J.  Ch.  373, 
377;  Doe  v.  Oliver,  2  Sm.  L.  C.  775. 

The  effect  of  the  original  Act  before  the  repeal  of  sect.  3  is,  it  is 
observed  by  a  learned  writer  (Farwell  on  Powers,  p.  291),  that  the 
lessee,  under  an  invalid  lease  granted  in  the  intended  exercise  of  a 
power,  became,  on  the  mere  acceptance  of  rent  by  the  re- 
[  *  289  ]  mrinderman,  *  tenant  fi'om  year  to  year  on  the  terms  of 
the  lease,  with  a  right  to  require  either  a  confirmation  of 
the  contract  or  a  lease  in  accordance  with  the  power,  the  remain- 
derman having  no  option  to  require  a  lease  in  accordance  with  the 
terms  of  the  power. 

The  effect  of  the  original  and  amendment  Acts  is  that  the  mere 
acceptance  of  rent,  without  the  memorandum  mentioned  by  sect.  2 
of  the  amendment  Act,  makes  the  lessee  tenant  from  year  to  year 
on  the  terms  of  the  void  lease,  with  the  right  to  demand  a  lease 
either  in  accordance  with  that  contract  or  with  the  terms  of  the 
power  ;  but  if  the  remainderman  is  willing  to  confirm  the  contract 
without  variation,  the  lessee  cannot  insist  upon  having  a  lease  in 
accordance  with  the  terms  of  the  power.  The  acceptance  of  rent, 
coupled  with  the  memorandum  mentioned  in  sect.  2  of  the  amended 
Act,  operates  as  a  confirmation  of  the  lease. 

It  may  here  be  mentioned  that  if  a  will  is  in  other  respects  pro- 
perly executed,  probate  cannot  be  refused  upon  the  ground  that  the 
power  under  which  it  has  been  made  has  not  been  properly  followed. 
See  Barnes  v.  Vincent  (5  Moore,  P.  C.  C.  201),  where  a  decision  of 
the  Prerogative  Court  refusing  probate  to  the  will  of  a  feme  covert, 
on  the  face  of  it  not  executed  according  the  requisites  of  the  power, 
was  reversed  by  the  Judicial  Committee  of  the  Privy  Council.  "  It 
is  certain,"  said  Lord  Brougham,  "  that  there  is  a  considerable  class 
of  cases,  in  which  equity  will  relieve  against  a  defective  execution 
of  a  power.  Thus  in  favour  of  a  purchaser  ;  of  a  creditor ;  of  a 
child  ;  equity  will  relieve.  But  if  probate  shall  have  been  refused 
by  the  Ecclesiastical  Court,  on  the  ground  of  the  execution  being 
defective,  no  such  relief  can  ever  be  extended  in  any  case  ;  because 
the  Court,  which  alone  can  relieve,  never  can  know  if  the  instrument 
had  existed,  nor  can  see  the  defect  in  the  execution  ;  and  the  Court 
of  Probate  is  bound  by  the  fact  of  the  defective  execution,  and  can- 
not remedy  it.  Thus  a  feme  covert  having  made  a  will  in  favour 
of  a  child,  and  imperfectly  executed  it,  the  child  must  be  excluded, 
by  probate  being  refused  ;  when,  had  a  Court  of  equity  been  put  in 
possession  of  the  instrument,  it  would  have  held  the  defective  exe- 
cution relievable  in  the  child's  behalf."  See  and  consider  Este  v. 
346 


TOLLET  V.  TOLLET.  *  290 

Este,  15  Jur.  150;  De  Chatelain  v.  De  Pontigny,  1  Swab.  &  Tr. 
411;  Mahon  v.  Hodyens,  (3  I.  H.  E.  339.  Bnt  it  seems  now  since 
the  Judicature  Act,  1873  (see  sect.  24,  Hub-s.  7)  that  where  the  will 
is  made  uuder  a  ])ower,  the  Probate  Division,  if  it  has  all  persons 
interested  before  it,  ought  to  decide  the  question  not  only  whether 
there  is  a  power,  but  whether  it  is  well  executed.  In  the  goods  of 
Tharp,  3  P.  D.  76. 

*  The  will  in  Barnes  v.  Vincent  was  made  prior  to  the  [  *  290  ] 
passing  of  the  Wills  Act  (1  Vict.  c.  26),  and  it  must  be  re- 
membered, that  by  that  Act,  no  appointment  made  by  will,  in  exer- 
cise of  any  power,  will  be  valid,  unless  the  same  be  executed  with 
the  solemnities  required  by  the  Act;  but  if  those  are  complied  with, 
the  appointment  will  be  valid,  although  some  additional  or  other 
form  of  execution  or  solemnity  may  have  been  required  by  the 
power.  See  sects.  9  and  10,  ante,  p.  279.  In  the  goods  of  Tharp,  3 
P.  D.  80. 

An  appointment  by  deed  is  now  rendered  valid  in  many  cases,  al- 
though not  executed  and  attested  by  all  the  solemnities  required  by 
the  instrument  creating  the  power.  See  the  Property  and  Trustees' 
Belief  Amendment  Act  (22  &  23  Vict.  c.  35),  s.  12,  which  enacts 
that  "  a  deed  hereafter  executed  in  the  presence  of,  and  attested  by, 
two  or  more  witnesses  in  the  manner  in  which  deeds  are  ordinarily 
executed  and  attested,  shall,  so  far  as  respects  the  execution  and  at- 
testation thereof,  be  a  valid  execution  of  a  power  of  apj)ointmentby 
deed  or  by  any  instrument  in  writing  not  testamentary,  notwithstand- 
ing it  shall  have  been  expressly  required  that  a  deed  or  instrument  in 
writing  made  in  exercise  of  such  power  should  be  executed  or  at- 
tested with  some  additional  or  other  form  of  execution,  or  attesta- 
tion, or  solemnity  :  provided  always,  that  this  provision  shall  not 
operate  to  defeat  any  direction  in  the  instrument  creating  the  power, 
that  the  consent  of*  any  particular  person  shall  be  necessary  to  a 
valid  execution,  or  that  any  act  shall  be  performed  in  order  to  give 
validity  to  any  appointment  having  no  relation  to  the  mode  of  ex- 
ecuting and  attesting  the  instrument,  and  nothing  herein  contained 
shall  prevent  the  donee  of  a  power  from  executing  it  conformably  to 
the  power  by  writing  or  otherwise  than  by  an  instrument  executed 
and  attested  as  an  ordinary  deed,  and  to  any  such  execution  of  a 
•  power  this  provision  shall  not  extend." 

[^Docfrine  of  the  Defective  Execution  ofaPoicer  Aided  Restated. — 
The  jurisdiction  which  equity  has  assumed  to  aid  the  defective  exe- 
cution of  powers  is  based  upon  the  theory  that,  the  donee  of  the 
power  had  intended  to  exercise  it,  but  has  been  prevented  from  do- 
ing so  by  some  accident  or  mistake  :  Barr  v.  Hotch,  3  Ohio,  527. 
Equity  will  not  allow  the  intention  to  be  defeated  for  the  sake  of  a 
mere  form,  but  if  no  power  has  been  exercised  no  intention  to  exer- 
cise it  can  or  will  be  presumed. 

The  powers  to  which  equity  will  lend  her  aid  are  those  created 

347 


292  ELLISON  V.  ELLISON. 


by  way  of  use  as  distinguished  from  bare  authorities  conferred  by 
law.  The  jurisdiction  of  courts  of  equity  to  supply  surrenders  of 
copyholders  is  no  longer  of  inaportance.] 


[  *  291  ]  *  ELLISON  ^.  ELLISON. 

Feh.  2Wi,  1802. 

[reported  6  VES.  656.] 

Voluntary  Trusts.] — Distinction  as  to  volunteers.  The  assistance 
of  the  Court  cannot  he  had  ivithout  consideration,  to  constitide 
a  party  cestui  que  trust,  as  upon  a  voluntary  covenant  to  transfer 
stock,  &c. ;  but  if  the  legal  conveyance  is  actually  made,  constitid- 
ing  the  relation  of  trustee  and  cestui  que  trust,  as  if  the  stock  is 
actually  transferred,  &c.,  though  without  consideration,  the  equit- 
able interest  will  he  enforced. 

Settlement  of  leasehold  estates  not  revoked  by  a  subsequent  as- 
signment by  the  trustee  to  the  settlor  entitled  for  life,  or  by  the 
will  of  the  latter:  no  intention  to  revoke  appearing;  and  the  terms 
of  a  power  of  revocation  not  being  complied  with. 

By  indenture,  dated  the  first  of  July,  1791,  reciting  a  lease,  dated 
the  6th  of  June  preceding,  of  collieries  at  Hebburn  and   Jarrow- 
wood,  in  the  county  of   Durham,  for  thirty-one  years,  to   Charles 
Wren  and  others;  and  that  the  name  of  Wren  was  used  in  trust  for 
Nathaniel  Ellison  and  Wren,  in  equal  shares;  it  was  declared,  that 
Wren,  his  executors  and  administrators,  would  stand  possessed  of 
the  lease,  in  trust,  as  to  one  moiety,  for  Ellison,  his  executors,  &c.' 
By  another  indenture,  dated  the  18th  of  June,  1796,  reciting,  that 
Ellison  was  interested  in  and  entitled  to  one  undivided  eighth  part 
of  certain  collieries  at  Hebburn  and  Jarrow,  held  by  two  separate 
leases  for  terms  of  thirty-one  years,  and  that  he  was  desirous  of  set- 
tling his  interest,  he  assigned  and  transferred   all  his  interest  in 
the  said  collieries,  and  all  the  stock,  &c.,  to  Wren,  his  exe- 
[  *  292  ]  cutors,  *   administrators,  and  assigns,  in  trust  for  Nath- 
aniel Ellison  and  his   assigns  during  his  life;  and,  after 
348 


ELLISOX  V.  ELLISON.  *  293 

his  decease,  in  triiHt  to  manage  and  carry  on  the  same,  in  like  man- 
ner as  Wren  should  carry  on  his  own  share;  and  upon  further 
trust,  out  of  the  profits,  to  pay  to  Margaret  Clavering,  during  the 
remainder  of  the  term,  in  case  she  should  so  long  live,  the  yearly 
sum  of  108Z.  2s.  8d.,  which  sum  is  thereby  mentioned  to  be  secured 
to  her  by  an  indenture,  dated '  the  14th  of  May  last;  and,  subject 
thereto,  in  trust  to  pay  thereout  to  Jane  Ellison,  in  case  she  should 
survive  Nathaniel  Ellison,  during  the  remainder  of  the  term,  dur- 
ing the  joint  lives  of  Jane  Ellison  and  Anne  Furye,  the  clear  yearly 
sum  of  180?. ;  and  after  the  decease  of  Anne  Furye,  then  the  yearly 
sum  of  90Z. ;  during  the  remainder  of  the  term,  incase  Jane  Ellison 
should  so  long  live;  and,  subject  as  aforesaid,  upon  trust  to  pay 
thereout,  to  each  of  the  children  of  Nathaniel  Ellison  that  should 
be  living  at  his  decease,  during  the  remainder  of  the  term,  during 
the  joint  lives  of  Jane  Ellison  and  Anne  Furye,  and  the  life  of  the 
survivor,  the  yearly  sum  of  30?.  apiece;  and  after  the  decease  of  the 
survivor  the  yearly  sum  of  15Z. ;  and  upon  further  trust  to  pay  the 
residue  of  the  profits  arising  from  the  collieries  to  the  eldest  son  of 
Nathaniel  Ellison,  who  should  attain  the  age  of  twenty-one;  and 
upon  the  death  of  Margaret  Clavering,  then  upon  trust  to  pay  to 
each  of  the  children  of  Nathaniel  Ellison  the  further  yearly  sum  of 
10?. ;  with  survivorship,  in  case  any  of  the  children  should  die  be- 
fore twenty-one,  or  marriage  of  daughters,  provided  none  except  the 
eldest  should  bo  entitled  to  a  greater  annuity  than  50?. ;  and  upon 
further  trust  to  pay  the  residue  to  the  eldest  son;  provided  further, 
in  case  all  the  chidren  die  before  twenty-one,  or  the  marriage  of 
daughters,  upon  trust  to  pay  the  whole  to  such  only  child  at  twenty- 
one,  or  marriage  of  a  daughter,  provided  further,  in  case  the  profits 
to  arise  from  the  collieries  should  not  be  sufficient  to  pay  all  the 
annuities,  the  annuitants,  except  Margaret  Clavering,  should  abate, 
to  be  made  up  whenever  the  profits  should  be  sufficient ; 
*  and  upon  further  trust,  in  case  Wren,  his  executors  or  [  *  293  ] 
administrators,  should  think  it  more  beneficial  for  the 
family  to  sell  and  dispose  of  the  collieries,  upon  trust  to  sell  and 
dispose  of  the  same  for  the  most  money  that  could  reasonably  be 
got,  and  to  apply  the  money,  in  the  first  place,  in  payment  of  all 
debts  due  from  the  collieries,  in  respect  of  the  share  of  Ellison; 
and,  subject  thereto,  to  place  out  the  residue  on  real  securities,  and 
apply  the  interest,  in  the  first  place,  in  payment  of  the  annuity  of 
lOBl.  28.  8d.  to  Margaret  Clavering;  then  to  the  annuities  of  180?. 

349 


*  294  ELLISON  V.  ELLISON. 

or  90Z. ;  then  to  pay  all  the  children  of  Ellison,  during  the  life  of 
Margaret  Clavering,  the  yearly  sum  of  221.  10s.,  and  to  pay  the 
residue  of  the  dividends  and  interest  to  the  eldest  son  of  Ellison,  in 
manner  aforesaid;  and  if  the  dividends,  &c.,  should  not  be  sufficient 
for  the  annuities,  the  two  annuitants,  except  Mai'garet  Clavering,  to 
abate;  and,  after  her  death,  to  pay  to  each  of  the  children  of  Nath- 
aniel Ellison  the  further  yearly  sum  of  21. 10s.  for  their  lives;  and, 
after  the  decease  of  Margaret  Clavering  and  Jane  Ellison,  upon 
trust  to  pay  to  each  of  the  children  of  Nathaniel  Ellison  the  sum  of 
500Z.,  in  case  the  money  arising  from  the  sale  should  be  sufficient; 
then  upon  trust  to  divide  the  same  equally  among  all  the  children, 
share  and  share  alike;  and,  subject  as  aforesaid,  to  pay  over  the 
residue  to  the  eldest  son  on  his  attaining  twenty-one;  and  it  was 
declared,  that  the  portions  of  the  children  should  be  paid  to  the 
sons  at  twenty-one,  to  the  daughters  at  twenty- one  or  marriage; 
and  in  case  of  the  death  of  any  before  such  period,  to  pay  that 
share  to  the  eldest  son  at  twenty-one;  and  if  only  one  child  should 
survive,  to  pay  the  whole  to  such  one  at  twenty -one  or  marriage,  if 
a  daughter;  and  incase  all  die  before  twenty -one,  &c.,  then  the  said 
Charles  Wren,  his  executors  and  administrators,  shall  stand  pos- 
sessed of  the  said  collieries,  and  the  money  to  arise  by  sale  thereof, 
subject  as  aforesaid,  in  trust  for  Nathaniel  Ellison,  his  executors, 
administrators,  and  assigns.  It  was  further  declared,  that  the 
annuities  should  be  paid  half-yearly;  and  that,  upon  any 
[  *294]  such  sale,  the  receipt  of  Wren,  his  *  executors  or  admin- 
istrator^,  should  be  a  sufficient  discharge  to  purchasers. 
Then  followed  this  proviso: — "  Provided  always  and  it  is  hereby  fur- 
ther declared,  that  it  shall  and  may  be  lawful  for  the  said  Nath- 
aniel Ellison,  by  any  deed  or  deeds,  writing  or  writings,  to  be  by 
him  signed,  sealed,  and  delivered  in  the  presence  of  and  attested  by 
two  or  more  credible  witnesses,  to  revoke,  determine,  and  make  void 
all  and  every  the  uses,  trusts,  limitations  and  powers  hereinbefore 
limited  and  created,  of  and  concerning  the  said  collieries  and 
coal  mines;  and  by  the  same  deed  or  deeds,  or  by  any  other  deed 
to  bo  by  him  executed  in  like  manner,  to  limit  any  new  or  other 
uses  of  the  said  collieries  and  coal  mines,  as  he,  the  said  Nathaniel 
Ellison  shall  think  fit." 

By  another  indenture,  dated  the  3rd  of  July,  1797,  but  not  attested 
by  two  witnesses  reciting  the  leases  of  the  collieries,  and  that  the 
name  of  Charles  Wren  was  used  in  trust  for  Nathaniel  Ellison  and 
350 


ELLISON  V.  ELLISON.  *  295 

himself,  in  equal  shareH,  and  that  Ellison  had  advanced  an  equal 
share  of  the  monies  supplied  for  caiTying  on  the  collir-ries,  amount- 
ing to  9037Z.  10s  ,  it  was  witnessed,  that,  in  consideration  of  4518^. 
15s.,  "Wren  assigned  to  Nathaniel  Ellison  one  undivided  moiety  or 
half  ])art  of  all  the  said  collieries,  demised  to  liim  by  the  said  several 
leases,  with  a  like  share  of  the  stock;  to  have  and  to  hold  the  said 
collieries  to  Ellison,  his  executors,  administrators  and  assigns,  for 
the  residue  of  the  said  terms,  subject  to  the  rents,  covenants,  and 
agreements  in  the  said  leases;  and  to  have  and  to  hold  the  stock 
unto  Ellison,  his  executors,  administrators,  and  assigns,  to  and  for 
his  and  their  own  proper  use  for  ever,  with  the  usual  covenants  from 
Wren  as  to  his  title  to  assign,  &c.,  and  from  Ellison  to  indemnify 
Wren,  his  executors,  &c. 

Nathaniel  Ellison,  by  his  will,  dated  the  22nd  June,  1796,  after 
several  specific  and  pecuniary  legacies,  gave  all  the  rest  and  residue 
of  his  personal  estate  and  effects,  of  what  nature  or  kind  soever,  not 
before  disposed  of,  to  his  wife,  and  Wren,  and  the  survivor,  and  the 
executors  and  administrators  of  such  survivor,  upon  trust 
to  call  in  *  and  place  the  same  out  in  the  funds,  or  on  real  ["*  295] 
securities;  and  he  directed  that  all  sums  of  money  which 
should  come  to  the  hands  of  his  wife  and  AVren,  or  of  the  executors, 
&c.,  of  either  of  them,  under  the  said  trusts,  should  be  equally  divided 
between  all  his  children,  sons  and  daughters,  born  and  to  be  born, 
share  and  share  alike;  the  shares  to  become  vested  and  be  payable 
upon  marriage;  with  consent  of  their  guardians,  and  not  otherwise, 
until  the  age  of  twenty-one;  such  part  of  the  interest  in  the  mean- 
time, as  the  guardians  shall  think  proper,  to  be  applied  for  main- 
tenance; the  residue  to  accumulate;  with  a  direction  for  payment  of 
part  of  the  principal  for  advancement,  and  survivorship  upon  the 
death  of  any  before  the  respective  shares  should  be  payable;  and,  in 
case  of  the  death  of  all  under  age  and  unmarried,  he  gave  the  divi- 
dends and  interest  for  his  wife  for  life;  and,  upon  her  death,  he  gave 
the  principal  and  a  sum  of  3000/.,  charged  upon  her  estates,  to  his 
sister,  Margaret  Clavering,  and  his  nephew.  Then,  after  some  far- 
ther dispositions  of  stock  in  favour  of  his  children,  he  gave  a  legacy 
of  twenty  guineas  to  Wren,  and  appointed  his  wife  and  Wren  exec- 
utors and  guardians. 

The  testator  died  in  1798,  leaving  his  widow  and  ten  children 
surviving;  one  of  whom,  Charles  Ellison,  died  in  1799,  an  infant 
Wren  also  died  in  that  year. 

351 


*  296  ELLISON  V.  ELLISON. 

The  bill  was  filed  by  the  testator's  widow  and  Margaret  Claver- 
ing,  praying,  that  the  trusts  of  the  deed  of  June,  1796,  may  be  es- 
tablished, and  that  new  trustees  may  be  appointed. 

The  younger  children,  by  their  answer,  submitted  whether  the 
trusts  of  that  deed  were  not  varied  or  revoked  by  the  deed  of  July, 
1797. 

Mr.  Romilly  and  Mr.  Bell,  for  the  plaintifPs,  insisted,  that  the 
subsequent  deed,  not  reciting  or  taking  any  notice  of  the  prior 
settlement,  could  not  revoke  it;  that  it  was  not  the  object  of  the  latter 
deed  to  revoke  the  former;  and  that  it  was  not  attested  by  two  wit- 
nesses, as,  in  order  to  effect  a  revocation,  it  ought  to  be. 
[  *  296  ]  *  Mr.  Richards,  for  the  eldest  son,  defendant,  claiming 
also  under  the  deed  of  1796,  declined  to  argue  the  case. 

Mr.  Steele  and  Mr.  W.  Agar,  for  the  other  defendants,  the 
younger  children. — Though  the  expression  in  the  clause  of  revoca- 
tion is  "  deed  or  writing,"  a  will  with  two  witnesses  would  do,  ac- 
cording to  the  case  (a)  from  Ireland,  cited  in  Lord  Darlington  v. 
Pulteney  (b).  No  intention,  however,  can  be  found  in  the  will  to 
revoke  this  settlement;  but  the  subsequent  deed  is  an  implied  revo- 
cation. What  use  could  there  be  in  that  deed  but  to  give  Ellison 
the  absolute  estate,  which  is  quite  inconsistent  with  the  trusts  of 
the  former  deed,  which  are  very  special,  and  give  a  large  discretion  ? 
An  instrument  may  be  revoked  by  another,  though  not  taking  notice 
of  the  former,  but  only  making  a  disposition  inconsistent  with  it: 
Lord  Fauconberge  v.  Fitzgerald  (c),  Arnold  v.  Arnold  (d).  And 
though  the  latter  of  these  cases  was  upon  a  will,  there  is  no  difiFer- 
ence  upon  a  voluntary  settlement.  There  is  no  instance  in  which  a 
voluntary  deed,  defective,  and  not  effectual  at  law,  has  been  aided 
in  this  court;  and  though  this  is,  in  some  respects,  in  favour  of  a 
wife  and  children,  one  of  the  parties  claiming  under  it  is  a  volun- 
teer; and  it  is  opposed  by  nine  out  of  ten  children.  This  deed,  like 
that  in  Colman  v.  Sarrel  (e),  cannot  be  proceeded  upon  at  law. 
But  if  the  trust  was  originally  well  created,  yet  if  the  subject  gets 
back,  and  is  vested  in  the  author  of  the  trust,  the  objection  lies. 
Mr.   Romilly,  in  reply. — Can   it   be  stated  as  a  question  here, 

(a)  Roscommon  v.  Fowke,  G  Bro.  P.  C,  Toml.  ed.  158. 

lb)  Cowp.  268. 

(c)  6  Bro.  P.  C.  295,  Toml.  ed. 

U)  1  Bro.  C.  C.  401. 

(e)  1  Yes.  Jun.  50;  S.  C.  3  Bro.  C.  C.  12. 

352 


ELLISON  V    ELLISON.  *  20? 

whether  a  settlement  for  a  Avife  Hiid  children  can  be  enforced  against 
the  representative  of  the  father  or  the  husband  ?  Colman  v.  Sar- 
rel  has  not  the  most  remote  application;  the  parties  claiming  under 
the  deed  being  mere  strangers,  except  by  a  connection  illegal  and 
immoral.  It  is  not  necessary  to  consider  the  case  of  a  mere  volun- 
teer. Mrs.  Clavering  was  a  creditor  by  an  annuity  secured  by  a 
prior  deed.  Supposing  Ellison  had  an  intention  to  revoke  this  set- 
tlement, he  had  prescribed  to  himself  certain  forms,  the  attestation 
of  two  witnesses.  There  is  no  instance  of  an  implied  re- 
vocation of  trusts,  *  which  are  only  to  be  revoked  expressly,  [  *  297  ] 
by  a  particular  certain  form.  But  there  is  not  the  least 
pretence  upon  these  instruments,  either  the  deed  or  the  will,  of  any 
such  intention.  The  will  was  executed  only  four  days  after  the 
settlement,  which  is  not  noticed  in  either  instrument.  It  is  no  more 
than  consenting  that  the  trustee,  having  the  legal  interest,  shall  as- 
sign to  another  person,  and  taking  it  himself.  Notwithstanding 
the  length  the  Court  has  gone  upon  wills  (e),  this  would  not  be  a 
revocation  even  of  a  will,  merely  taking  the  legal  interest,  having 
disposed  of  the  equitable.  The  intention  that  these  trusts  should 
not  prevail  would  have  been  expressly  declared.  As  far  as  Wren 
was  a  trustee,  the  deed  is  revoked;  but  it  was  the  act  of  AVren,  Elli- 
son being  passive. 

Lord  Chancellor  Eldon. — I  had  no  doubt,  that,  from  the  moment 
of  executing  the  first  deed,  supposing  it  not  to  have  been  for  a  wife 
and  children,  but  for  pure  volunteers,  those  volunteers  might  have 
filed  a  bill  in  equity,  on  the  ground  of  their  interest  in  that  instru- 
ment, making  the  trustees  and  the  author  of  the  deed  parties.  I  fake 
the  distinction  to  be,  that,  if  you  tvant  the  assistance  of  the  Court  to 
constitute  you  cestui  que  trust,  and  the  instrument  is  voluntary,  you 
shall  not  have  that  assistance  for  the  purpose  of  constituting  you 
'Cestui  que  trust:  as,  upon  a  covenant,  to  transfer  stock,  <&c.,  if  it 
rests  in  covenant,  and  is  purely  voluntary,  this  Court  ivill  not  exe- 
cute  that  voluntary  covenant.  But  if  the  party  has  completely 
transferred  stock,  &c.,  though  it  is  voluntary,  yet  the  legal  convey- 
ance being  effectually  made,  the  equitable  interest  will  be  enforced 
by  this  Court.  That  distinction  was  clearly  taken  in  Colman  v. 
Sarrel  (/),  independent  of  the  vicious  consideration.     I  stated  the 

(e)  See  Harmood  r.  Oglander,  6  Ves.  199.  and  note. 
^f)  1  Ves.  jun.  50;  S.  C.  3  Bro.  C.  C.  12. 

23   WHITE  ON   EQUITY.  353 


*  298  ELLISON  V.  ELLISON. 

objection,  that  the  deed  was  voluncary ;  and  the  Lord  Chancellor  (c^) 
went  to  me  so  far  as  to  consider  it  a  good  objection  to  executing 
what  remained  in  covenant.  But  if  the  actual  transfer  is  made, 
that  constitutes  the  relation  between  trustees  and  cestui  que  trust, 
though  voluntary,  and  withcfut  good  or  meritorious  (h)  considera- 
tion; and  it  is  clear,  in  that  case,  that,  if  the  stock  had  been 
[  *  298  ]  *  actually  transferred,  unless  the  transaction  was  affected 
by  the  turpitude  of  the  consideration,  the  Court  would 
have  executed  it  against  the  trustee  and  the  author  of  the  trust. 

In  this  case,  therefore,  the  person  claiming  under  the  settlement 
might  maintain  a  suit,  notwithstanding  any  objection  made  to  it  as 
being  voluntary,  if  that  could  apply  to  the.jcase  of  a  wife  and  chil- 
dren; considering,  also,  that  Mrs.  Clavering  was  an  annuitant,  and 
not  a  mere  volunteer.  But  it  was  put  for  the  defendants  thus — 
that  though  the  instrument  would  have  been  executed  originally,  if 
the  subject  got  back  by  accident  into  the  author  of  the  trust,  and 
was  vested  in  him,  then  the  objection  would  lie  in  the  same  manner 
as  if  the  instrument  was  voluntary.  I  doubt  that,  for  many  rea- 
sons— the  trust  being  once  well  created,  and  whether  it  would  ap- 
ply at  all  where  the  trust  was  originally  well  created,  and  did  not 
rest  merely  in  engagement  to  create  it.  Suppose  "Wren  had  died, 
and  had  made  Ellison  his  executor,  it  would  be  extraordinary  to 
hold,  that  though  an  execution  would  be  decreed  against  him  as 
executor,  yet,  happening  to  be  also  author  of  the  trust,  therefore  an 
end  was  to  be  put  to  the  interest  of  the  cestui  que  trust.  But  it 
does  not  rest  there;  for  Ellison  clothes  the  legal  estate  remaining 
in  Wren  with  the  equitable  interests  declared  by  the  first  deed, 
making  him,  therefore,  a  trustee  for  Ellison  himself  fi.rst,  and,  after 
his  death,  for  several  other  persons;  and  he  has  said,  he  puts  that 
restraint  upon  his  only  power,  not  only  that  he  shall  not  have  a 
power  of  revocation  whenever  he  changes  his  intention,  but  that  he 
shall  not  execute  that  power,  nor  be  supposed  to  have  that  change 
of  intention,  unless  manifested  by  au  instrument  executed  with  cer- 
tain given  ceremonies.  My  opinion  is,  that  if  there  is  nothing 
more  in  this  transaction  than  taking  out  of  Wren  the  estate  clothed 
with  a  trust  for  others  with  present  interests,  though  future  in  en- 
joyment, and  that  was  done  by  an  instrument  with  no  witness,  or 

ig)  Thurlow. 

{h)  That  meritorious  consideration  merely  will  not  entitle  a  volunteer  to  the 
aid  of  equity,  see  Jefferevs  v.  Jeffereys,  1  Cr.  &  Ph.  1:]8;  Dillon  v.  Copin,  4  My. 
&  Cr.  647,  overruling  Ellis  v.  Nimmo,  L.  &  G.  333,  t.  Sugd. 

354 


ELLISON  V.  ELLISON.  *  oOO 

only    ono    witness,  it  is   hardly  possible   to  contend  that 
such  an  instrument  would  be  a  revocation  *  according  to  [  *  299  ] 
the  intention  of  the  party,  the  evidence  of  whoHO  intention 
is  made  subject  to  restrictions  that  are  not  complied  with.     The 
only  difficulty  is,  that  the  declaration  of  the  trusts  in  the  first  in- 
strument could  not  be  executed,  the  second  instrument  being  al- 
lowed to  have  effect.     It  is  said,  a  power  was  placed  in  AVren,  his 
executors  and  administrators,  not  his  assigns,  if  in  sound  discretion 
thought  tit,  to  sell  and  to  give  a   larger  interest  to  the  younger 
children  than  they  otherwise  would  take.     If  Wren  had  not,  after 
the  re-assignment,  that  discretion  still  vested  in  him,  I  think  it  would 
not  be  in  the  executors  of  Ellison,  and  it  could  not  bo  exercised  by  the 
Court,  though;  in  general  cases,  trusts  tvill  not  fail  hij  the  failure  of 
the  trustee.     But,  though  the  effect  would  be' to  destroy  the  power 
of  Wren,  which  I  strongly  doubt,  attending  to  the  requsitiou  of  two 
witnesses,  I  do  not  know  that  it  would  destroy  the  other  interests. 
I  think,  therefore,  upon  the  whole,  this  trust  does  remain,  notwith- 
standing this  re- assignment  of  the  legal  estate  to  Ellison.     I  do  not 
think,  consistently  with  the  intention  expressed  in  the  first  instru- 
ment, and  the  necessity  imposed  upon  himself  of  declaring  a  dif- 
ferent intention  under  certain  restrictions,  that,  if  a  different  in- 
tention appeared  clearly  upon  the  face  of  the  instrument,  the  latter 
would  have  controlled  the  former.     But  I  do  not  think  his  acts  do 
manifest  a  different  intention.     Supposing  one  witness  sufficient, 
the  second  deed  does   not  sufficiently  manifest  an  intention  to  re- 
voke all  the  benefits  given  by  the  first  deed  to  the  children;  and  it 
is  not  inconsistent  that  he  might  intend  to  revoke  some,  and  not  all. 
As  to  the  will,  it  is  impossible  to  maintain  that  the  will  is  a  writ- 
ing within  the  meaning  of  the  power,  considering  how  the  subject 
is  described.     The  word  "  residue  "  there  means  that  estate  of  vrhich 
he  had  the  power  of  disposing,  not  engaged  by  contracts,  declara- 
tions of  trusts,  &c.     It  was  necessary  for  him  to  describe  the  sub- 
ject in  such  a  way  that  there  could  be  no  doubt  he  meant  to  embrace 
that  property.     Upon   the    whole,  therefore,   this    relief 
*  must  be  granted;  though  I  agree,  that,  if  it  rested  in  cov-  [  *  800] 
enant,  the  personal  representative  might  have  jiut  them  to 
their  legal  remedies,  he  cannot,  where  the  character  of  trust  attached 
upon  the  estate  while  in  Wren;  which  character  of  trust,  therefore, 
should  adhere  to  the  estate  in  Ellison,  unless  a  contrary  intention 
was  declared;  and  the  circumstance  of  one  witness  only,  when  the 

355 


*  301  ELLISON  V.  ELLISON. 

power  reserved  required  two  witnesses,  is  also  a  circumstance  of  evi- 
dence that  he  had  not  the  intention  of  destroying  those  trusts  which 
had  attached,  and  were  then  vested  in  the  person  of  Wren. 

The  ordering  part  of  the  decree,  extracted  from  the  Registrar's 
Book,  is  thus  {i):  "  Whereupon,  and  upon  debate  of  the  matter,  and 
hearing  the  deed  of  trust  dated  the  18th  June,  1796,  read,  and  what 
was  alleged  by  the  counsel  on  both  sides,  his  lordship  doth  declare 
that  the  trust  of  the  said  deed,  bearing  date  18th  June,  1790,  ought 
to  be  performed  and  carried  into  execution,  and  doth  order  and  de- 
cree the  same  accordingly.  And  it  is  further  ordered  and  decreed, 
that  it  be  referred  to  Mr.  Ord,  one  of  the  Masters  of  this  Court,  to 
appoint  a  new  trustee  or  trustees  of  the  premises  comprised  in  the 
said  trust  deed,  and  that  the  share  of  the  said  Nathaniel  Ellison  of 
and  in  the  said  collieries,  and  the  stock  and  efPects  belonging  thereto 
comprised  in  the  said  deed,  be  assigned  to  such  new  trustee  or  trus- 
tees so  to  be  appointed,  upon  the  trusts  and  upon  and  for  the  intents 
and  purposes  declared  by  the  said  deed  concerning  the  same,  and 
such  new  trustee  or  trustees  is  or  are  to  declare  the  trust  thereof 
accordingly,  and  the  said  Master  is  to  settle  such  assignment;  and 
it  is  ordered  that  the  said  Master  do  tax  all  parties  their  costs  in 
this  suit,  and  that  such  costs,  when  taxed,  be  paid  out  of  the  estate 
of  the  said  testator,  and  any  of  the  parties  are  to  be  at  liberty  to 
apply  to  this  Court  as  there  shall  be  occasion." 


In  the  leading  case  of  Ellison  v.  Ellison,  Lord  Eldon  lays  down 
and  acts  upon  the  well-known  rule,  that  where  a  trust  is 
[  *  301  ]  actually  created,  *  and  the  relation  of  trustee  and  cestui  que 
trust  established,  a  Court  of  equity  will,  in  favour  of  a  vol- 
unteer, enforce  the  execution  of  the  trust  against  the  person  creat- 
ing the  trust,  and  all  subsequent  volunteers;  although  it  will  not 
create  a  trust  or  establish  the  relationship  of  trustee  and  cestui  que 
trust,  by  enforcing  the  performance  of  an  agreement,  or  by  giving 
efPect  to  an  imperfect  conveyance  or  assignment  in  favour  of  volun- 
teers. The  application  however,  of  this  rule,  is  by  no  means  free 
from  difificulty,  as  it  is  frequently  a  question  of  much  nicety  to  deter- 
mine whether  the  relation  of  trustee  and  cestui  que  trust  has  or  not 
been  established.  It  is  intended,  therefore,  in  this  note  to  examine 
the  cases  in  which  equity  interposes  or  refuses  its  aid  in  favour  of 
volunteers,  and  also  to  show  how  far  voluntary  deeds  are  void  as 
against  purchasers  or  creditors. 

(i)  Taken  from  the  judgment  of  Lord  Justice  Knight  Bruce  in  Kekewich  v. 
Manning,  1  Do  G.  Mac.  &  G.  191. 
356 


P:LL1S0N  v.  ELLISON.  *  302 

Complete  trust  on  actual  transfer  of  legal  interest.^ — Where  there 
has  been  an  actual  bona  fide  transfer  of  the  legal  interest  in  real  or 
personal  properly  by  the  settlor  or  his  trustees  to  trustees  upon  trusts 
declared  in  favour  of  volunteers,  these  trusts,  it  is  clear,  will  be  en-. 
forced  in  e(piity  against  the  settlor  or  his  representatives  or  subse- 
quent volunteers.  Thus,  for  instance,  if  there  be  a  conveyance'  or 
assignment  of  land  passing  the  legal  estate,  as  is  laid  down  in  the 
principal  case  {ante,  p.  298,  and  see  Woodford  v.  Charnley,  28  Beav 
96),  or  of  chattels  passing  by  deed  without  delivery  (Siggers  v. 
Ecans,  5  Ell.  &  Bl  367);  or  a  delivery  of  chattels  {Farington  v. 
Parker,  4  L.  R.  Eq.  116),  or  of  securities  transferable  by  delivery 
(M'Culloch  V.  Bland,  2  Giff.  428 )  or  of  cheques,  if  accepted  as  gifts 
(Bromley  v.  Brunton,  6  L.  R.  Eq.  275),  and  not  as  loans  (Hill  v. 
Wilson,  8  L.  R.  Ch.  App.  888);  or,  if  in  the  case  of  chattels  passing 
by  delivery,  there  has  been  conduct  on  the  part  of  the  parties  to  the 
transaction  showing  that  the  ownership  in  the  chattels  has  been 
changed,  and  therefore  equivalent  to  a  delivery  {Flory  v.  Denny,  7 
Exch.  583;  Ward  v.  Audland,  16  M.  &  W.  862;  Winter  v.  Winter, 
9  W.  R.  (Q.  B. )  747,  l)ut  see  Irons  v.  Smallpiece,  2  B  &  Aid.  551  : 
and  Shoicer  v.  Pilck,  4  Ex.  478,  In  re  Ridgway,  Ex  parte  Ridgway, 
152  B.  D.  447,  according  to  which,  in  the  absence  of  an  assignment, 
actual  delivery  of  chattels  was  held  necessary  to  pass  the  property 
therein),  or  there  has  been  a  complete  transfer  of  stock,  as  laid  down 
in  the  principal  case  {ante,  p.  297:)  in  all  these  cases,  though  the 
conveyance,  assignment,  delivery  or  transfer  be  voluntary,  yet  the 
legal  conveyance  being  effectually  made,  the  equitable  interest  will 
be  enforced  by  the  Court.  [If  the  conveyance  is  voluntary,  the  court 
will  not  erecute  it,  but  if  the  transfer  has  been  complete,  even  if  it 
was  voluntary,  the  equitable  interest  will  be  enforced  by  the  court  of 
chancery:  Adams  v.  Adams,  21  "Wallace,  185;  Clark  t\  Lott,  11  111. 
105;  Stone  v.  Hackett,  12  Gray,  227;  Vreeland  v.  Van  Horn,  2  C. 
E.  Green,  139;  Souverbye  r.  Ardeu,  1  Johns.  Ch.  240;  Crompton  t\ 
Nassar,  19  Ala.  266;  Stone  v.  King,  7  R.  I.  358;  Carhart's  Aftpeal, 
28  P.  F.  Smith,  119;  Dollinder's  Appeal,  21  P.  F.  Smith,  425.]  See 
also  Colman  v.  Sarrel,  3  Bro.  C.  C.  12,  14;  S.  C,  1  Ves. 
jun.  50;  Pulvertoft  v.  Pulvertoft,  *  18  Ves.  84,  99;  Bill  v.  [  *  302  ] 
'Curefon,  2  My.  &  K.  503;  Jefferys  v.  Jefferys,  Cr.  &  Ph.  138, 
141;  Deniriq  v.  Ware,  22  Beav.  184;  Mugqeridge  v.  Stanton,  7  W. 
R.  (V.-C.  K.)  638;  Dilrow  v.  Bone,  3  Giff.  538. 

And  the  Court  will  do  this  even  although,  as  in  the  principal 
case,  the  trust  property  by  accident  gets  back  into  the  hands  of  the 
donor  {Sniifh  v.  Lyne,  2  Y.  &  C.  C.  C.  345;  Broicne  v.  Carendish, 
1  J.  &  L.  637;  Nejcton  v.  Askew,  11  Beav.  145;  Page  v.  Home,  11 
Beav.  227;  Lanham  v.  Pirie,  2  Jur.  N.  S.  753,  3  Jiir.  N.  S.  704  ; 
Gilbert  v.  Overton,  2  H.  &  M.  117);  [A  deed  under  a  voluntary 
settlement  if  executed  in  due  form  will  be  binding  on  the  settlor 
though  he  retains  possession  of  it:  Bunn  v.  Wmthrop,  1  Johns. 
Ch.  329;  Urann  v.  Coates,  109  Mass.   581.     If  the  trust  has  been 

357 


*  303  ELLISON  V.  ELLISON. 

perfectly  created,  it  matters  not  if  the  deed  is  lost  or  revoked  or  the 
property  revested;  Meiggs  v.  Meiggs,  15  Hun.  458;  Ritter's 
Appeal,  59  Pa.  St.  9;  Sewell  v.  Roberts,  115  Mass.  272;  Aylsworth 
V.  Whitcomb,  12  R.  I.  298.  As  to  revocation,  see  Isham  v.  Dela- 
ware R.  R.  Co.,  3  Stock,  229.]  to  whom  if  it  were  transferred  by  the 
trustees  they  would  commit  a  breach  of  trust:  JWDonnell  v.  HesilHge, 
16  Beav.  U6. 

Nor  is  it  essential  to  the  creation  of  a  trust  in  favour  of  volunteers 
that  the  trustees  should  accept  the  trust  (  Tierney  v.  Wood,  19  Beav. 
330;  Donahue  v.  Conrahy,  2  Jo.  L.  689;  Kronheim  v.  Johnson,  7 
Ch.  D.  60),  and  if  trustees  to  whom  the  legal  interest  has  been 
transferred  disclaim,  the  Court,  which,  in  accordance  with  the  well- 
known  maxim,  never  allows  a  trust  to  fail  for  want  of  a  trustee^  will 
appoint  new  trustees  in  their  places:  Jones  v.  Jones,  AV.  N.  18  < 4,  p. 
190. 

Where  there  is  a  clear  intention  on  the  part  of  the  donor  of  mak- 
ing a  gift,  a  legal  transfer  of  the  subject  matter  of  the  gift  to  the 
donee  will  be  valid,  although  it  was  not  knowingly  made  to  him  for 
the  purpose  of  carrying  out  the  gift.  See  Strong  v.  Bird,  18  L.  R. 
Eq.  315,  where  Sir  G.  Jessel  made  the  following  observations: — 
"It  is  not  necessary  that  the  legal  change  shall  knowingly  be  made 
by  the  donee  with  a  view  to  carry  out  the  gift.  It  may  be  made  for 
another  purpose;  but  if  the  gift  is  clear,  and  there  is  to  be  no  re- 
call of  the  gift,  and  no  intention  to  recall  it  so  that  the  person  who 
executes  the  legal  instrument  does  not  intend  to  invest  the  person 
taking  upon  himself  the  legal  ownership  with  any  other  character, 
there  is  no  reason  why  the  legal  instrument  should  not  have  its  legal 
effect.  For  instance,  suppose  this  occurred,  that  a  person  made  a 
memorandum  on  the  title  deeds  of  an  estate  to  this  effect:  'I  give 
Blackacre  to  A.  B.,'  and  afterwards  conveyed  that  estate  to  A.  B.  by 
a  general  description,  not  intending  in  any  way  to  change  the  pre- 
vious gift,  would  there  be  any  equity  to  make  the  person  who  had 
so  obtained  the  legal  estate  a  trustee  for  the  donor  ?  The  answer 
would  be,  that  there  is  no  resulting  trust;  that  is  rebutted  by 
showing  that  the  person  who  conveyed  did  not  intend  the  person 
taking  the  conveyance  to  be  a  trustee;  and  although  the  person  con- 
veying actually  thought  that  that  was  not  one  of  the  estates  con- 
veyed, because  that  person  thought  that  he  had  well  given 
[  *  303]  the  estate  before,  *  still  the  estate  would  pass  at  law,  not- 
withstanding that  idea,  and  there  being  no  intention  to 
revoke  the  gift,  surely  it  would  get  rid  of  any  resulting  trust.  On 
the  same  principle,  where  a  testator  makes  his  debtor  executor,  and 
thereby  releases  the  debt  at  law,  he  is  no  longer  liable  at  law.  It 
is  said  that  he  would  be  liable  in  this  Court;  and  so  he  would 
unless  he  could  show  some  reason  for  not  being  made  liable." 

AVhere,  however,  although  there  has  been  an  intended  transfer  to 
trustees,  the  trusts  have  not  been  finally  determine  upon  by  the 

358 


ELLISON  V.  ELLISON.  *  303 

settlor,  be  has  a  locus poenitentice,  and  may  call  for  a  re-transfer: 
Be  Sykes'  Trusts,  2  J.  &  H.  415. 

Exceptions  in  the  case  of  Deeds  for  payment  of  creditors — in  what 
cases.  J — Where  a  legal  transfer  of  property  has  been  made  to  trus- 
tees, for  payment  of  the  debts  of  the  owner  ivithout  the  kmncledge 
or  concurrence  of  his  creditors,  such  a  transaction,  it  has  been  re- 
peatedly held,  does  not  invest  creditors  with  the  character  of  cestuis 
que  trust,  but  amounts  merely  to  a  direction  to  the  trustees  as  to 
the  method  in  which  they  are  to  apply  the  jjroporty  vested  in  them 
for  the  beneiit  of  the  owner  of  the  property,  who  alone  stands 
towards  them  in  the  relation  of  cestui  que  trust,  and  can  vary  or 
revoke  the  trusts  at  pleasure,  as  for  instance  by  a  second  conveyance 
executed  by  several  creditors  not  privy  to  the  first  [Acton  v.  Wood- 
gate,  2  My.  &  K.  495);  especially  when  the  payment  of  the  debts 
is  only  to  be  made  on  the  request  of  the  settlor  {Evans  v.  Bagwell, 
2  Con.  &  L.  612);  but  such  revocation  can  only  take  place  without 
prejudice  to  anything  which  the  trustees  have  done  in  the  proper 
performance  of  their  duties:  Wilding  v.  Richards,  1  Coll.  055,659; 
Kirican  v.  Daniel,  5  Hare,  493. 

[Voluntary  assignments  to  trustees  for  the  benefit  of  cz-editors 
constitute  an  exception  to  the  general  rules  by  which  the  creation 
of  voluntary  trusts  is  governed,  because  after  such  an  assignment, 
but  before  it  has  been  communicated  to  the  creditors,  it  is  revocable 
at  the  option  of  the  grantor. 

This  doctrine  which  was  laid  down  in  "Walwyn  v.  Coutts,  3  Mer. 
707;  and  which  has  been  extensively  followed  in  England,  is  that 
the  assignee  for  the  benefit  of  creditors  is  not  strictly  a  trustee  but 
merely  an  agent  of  the  debtor.  This  doctrine  has  not,  however, 
been  approved  in  America  because  the  assent  of  the  creditor  is 
presumed  to  bo  given  to  a  trust  created  for  his  benefit  and  after 
such  assent  the  trust  is  ii-revocable  by  the  grantor:  England  v.  Rey- 
nolds, 38  Ala.  370;  Read  v.  Robinson,  6  AV.  &  S.  329;  Pingree  v. 
Comstock,  18  Pick.  46;  Shepherd  r.  McEvers,  4  Johns.  Ch.  136; 
Weir  V.  Tannehill,  2  Yerg.  57.  But  the  presumption  of  the  cred- 
itor's assent  may  be  rebutted  by  conduct:  Gibson  v.  Rees,  50  111.  383.] 

Courts  of  equity,  therefore,  will  not,  at  the  instance  of  the  cred- 
itors, who  are  looked  upon  as  mere  strangers,  compel  the  trustees 
to  execute  the  trusts  for  payment  of  debts.  Thus,  in  Walnyn  v. 
Coutts,  3  Mer.  707,  S.  C,  3  Sim.  14,  where  estates  are  conveyed  to 
trustees  upon  trust  for  the  payment  of  the  debts  of  certain 
scheduled  creditors,  who  were  neither  part ies  nor  privies  to  the  deed. 
Lord  Eldon  held,  that  the  trust  was  voluntary,  and  that  it  coul.l 
not  be  enforced  against  the  owners  of  the  estates,  who  might  vary 
it  as  they  pleased.  See,  also,  in  Garrard  x.  Lord  Lauderdale,  ?^ 
Sim.  1,  2  Russ.  &  My.  451.  In  Page  v.  Broom,  4  Russ.  0,  a  debtor 
had  by  deed  poll  directed  the  receiver  of  his  estate  to  pay  the  in- 
terest of  a  particular  debt:  it  was  held  by  Sir  J.  Leach,  M.  R.,  that, 

359 


*  305  ELLISON  V.  ELLISON. 

as  the  deed  was  executed  without  consideration,  and   without  the 

privity  of  the  creditor,  no  trust  was  created  in  his  favour 
[  *  304  ]   This  case  was  affirmed  *  on  appeal   by  Lord  BrougUvian. 

See  2  Russ.  &  My.  214;  and  the  observation  of  Pepys,  M. 
R.,  in  Bill  v.  Ciireton,  2  My.  &  K.  511.  See  -dlso  Ravenshaiv  v.  Hoi- 
lier,  7  Sim.  3;  Wilding  v.  Richards,  1  Coll.  G55;  Law  v.  Bagivell,  4 
D.  &  W.  398;  Broivne  v.  Cavendish,  1  J.  &  L.  635;  Smith  v.  Hurst, 
10  Hare,  30;  Steele  v.  Murphy,  3 'Moore,  P.  C.  C.  445;  Smith  v. 
Keating,  6  C.  B.  136,  158;  Thatjer  v.  Lister,  9  W.  R.  (V.-C.  W.) 
360;  Henriques  v.  Bensusan,  20  W.  R,  (V.-C.  M. )  350;  Johns  v. 
James,  8  Ch.  D.  744. 

Where  parties  interested  in  a  fund,  by  an  arrangement  between 
themselves,  without  any  communication  with  a  third  party,  trans- 
fer it  by  deed  to  trustees  upon  trust  to  pay  the  costs  of  the  third 
party  and  divide  the  residue  among  themselves,  the  third  party  as 
the  deed  was  revocable  by  the  parties  executing  it,  cannot  in  his 
own  favour  compel  an  execution  of  the  trusts  thereof.  Thus  in 
Gibbs  V.  Glamis,  11  Sim.  584,  a  suit  was  instituted  by  A.  against 
B.  &  C.  respecting  a  sum  of  4000Z.  D.  was  also  made  a  party  to  the 
suit;  but,  having  no  interest,  he  disclaimed.  A.,  B.,  and  C.  after- 
wards came  to  a  compromise;  in  pursuance  of  which  they  executed 
a  deed,  assigning  the  4()00Z.  to  trustees,  in  trust  to  pay  D.  his  costs 
of  the  suit,  and  to  divide  the  rest  of  the  fund  amongst  A.,  B.,  &  C. 
D.,  though  he  was  not  a  party  either  to  the  compromise  or  to  the 
deed,  filed  a  bill  against  A.,  B.,  and  C,  and  the  trustees,  to  compel 
a  performance  of  the  trusts  and  payment  of  his  costs.  Lord  Cot- 
tenham,  reversing  the  decision  of  Sir  L.  Shadicell,Y.-C.,  allowed 
the  demurrer  of  C.  for  want  of  equity,  observing,  "  that  the  ques- 
tion Avas,  whether  the  provision  for  payment  of  costs  gave  the  party 
whose  costs  were  so  provided  for  a  right  to  institute  a  suit  as  cestui 
que  trust,  he  having  no  interest  in  the  fund,  not  having  been  a 
party  to  the  arrangement,  and  the  arrangement  having  been  made 
between  the  parties  interested  in  the  fund,  for  their  own  benefit  or 
convenience;  that  the  present  case  was  not  distinguishable  from 
Gaiirard  v.  Lord  Lauderdale,  and  the  other  cases  which  had  been 
cited,  in  each  of  which  the  plaintifP  was  as  much  a  cestui  que  trust 
as  the  plaintifP  in  that  case  was.  See  also  Simmonds  v.  Palles,  2 
Jo.  &  L.  489;  Synnot  v.  Simpsoji,  5  Ho.  Lo.  Ca.  121. 

Where,  moreover,  the  Crown,  by  warrant  "grants,"  as  for  instance, 
booty  of  war  to  an  officer  of  state,  even  though  it  be  "in  trust"  to 
distribute  among  certain  persons  found  to  be  entitled  thereto,  such 
warrant  will  not  operate  as  a  transfer  of  pi'operty,  or  to  create  a 
trust  cognisable  in  a  Court  of  law,  but  will  make  such  officer  merely 
the    agent   of    the    Crown    to   distribute    the   fund,  and  from  his 

decision  there  can  be  no  appeal  except  to  the  Crown. 
[  *  305  ]  *  Kinlock  v.  Secretary  of  State  for  Lidia  in  Council,  15 

Ch.  D.  1. 
It  is  clear  also,  that,  in  other  cases  in  which  creditors  are  not  con- 
360 


ELLISON  V    ELLISON.  *  306 

cerned,  a  person  not  intending  to  give  or  part  with  the  dominion 
over  his  property,  may  retain  snch  dominion,  notwithstanding  he 
may  have  vested  the  pro])erty  in  trustees,  and  declared  a  trust  upon 
it  in  favour  of  third  persons.  Thus,  in  Hughes  v.  Stubbs,  1  Hare, 
47G,  a  testratrix  drew  a  cheque  on  her  bankers  for  !")()/.  in  favour 
of  A.,  and  she  verbally  directed  A.  to  apply  that  sum,  or  so  much 
of  it  as  might  be  necessary,  to  make  up  to  a  legatee  the  difference  in 
value  between  a  legacy  of  100?.  which  the  testatrix,  l)y  her  will,  had 
given  to  the  legatee,  and  the  price  of  a  lOOZ.  share  in  a  certain 
railway  :  the  testatrix  informing  A.  that  she  intended  to  give  the 
share  instead  of  the  legacy,  but  she  did  not  think  it  necessary  to 
alter  her  will.  The  bankers  gave  credit  to  A.  for  the  1 50Z.  The  tes- 
tatrix  afterwards  died.  In  a  suit  for  the  administration  of  her  es- 
tate, Sir  J.  Wigram,  V.-C,  held,  that  no  trust  was  created  for  the 
benefit  of  the  legatee  in  respect  of  the  150?.  "  The  cases,"  observed 
his  Honor,  "  on  this  subject  are  necessarily  of  difficulty  ;  but  the 
conclusion  to  which  I  feel  bound  to  come  is,  that  the  testatrix  did 
not  part  with  her  property  in  the  sum  in  question,  or  create  any 
trust  for  the  legatee."  See  also  Gaskell  v.  Gaskell,  2  Y.  &  J.  502  ; 
Paterson  \.  Murphy,  11  Hare,  88;  Smith  v.  Warde,  15  Sim.  56;  and 
the  remarks  of  IFood,  V.-C,  in  Vandenberg  v.  Palmer,  4  K.  &  J.  214, 
218;  Field  v.  Lonsdale,  13  Beav.  78;  Pedder  v.  Mosely,  31  Beav. 
159;  Daviesv.  Otty,  33  Beav.  540. 

Where  however  a  trust  in  favour  of  creditors  has  been  communi- 
cated to  the  creditors — a  fact,  it  seems,  which  must  be  clearly 
i:)roved  (Cornthivaite  v.  Frith,  4  De  G.  &  Sm.  552) — it  can  be  no 
longer  revoked  by  the  settlor,  because  the  creditors,  being  aware  of 
such  a  trust,  might  be  thereby  induced  to  a  forbearance  in  respect 
of  their  claims,  which  they  would  not  otherwise  have  exercised  (Ac- 
ton V.  Woodgate,  2  Mv.  &  K.  495;  Broume  v.  Cavendish,  1  J.  &  L. 
635;  7  Ir.  Eq.  Rep.  388;  Simmonds  v.  Palles,  2  J.  &  L.  504;  Kir- 
tvan  V.  Daniel,  5  Hare,  499;  Harland  v.  Binks,  15  Q.  B.  713;  Sig- 
gers  v.  Evans,  5  Ell.  &  Bl.  367),  and  a  fortiori  wiU  this  be  the  case 
Avhen  the  deed  has  been  acted  upon,  Cosser  v.  Radford,  1  De  G.  Jo. 
&  Sm.  585. 

And  it  is  clear  that  where  an  assignment  is  made  to  a  creditor  in 
trust  for  himself  and  other  creditors,  it  cannot  be  revoked  by  the 
assignor  after  it  has  been  communicated  to  the  assignee,  unless  he 
has  done  something  to  shew  his  dissent  :  Siggers  v.  Evans,  5  Ell. 
&  B.  367,  380,  381;  Laivrence  v.  Campbell,  7  AV.  K.  (V.-C. 
K.)  170;  Hobson  v.  Thellnsson,*2  L.  R.  Q.  B.  642;  Johns  [  *  306  ] 
V.  James,  8  Ch.  D.  751,  743. 

And  where  pi'operty  had  been  conveyed  upon  trust  ft)r  jiayment 
of  debts  to  a  person  who  was  surety  for  some  of  the  debts,  it  was 
held,  although  the  conveyance  was  a  mere  deed  of  agency,  and  not 
binding  on  the  creditors,  who  were  neither  parties  nor  privies  there- 
to, that  the  person  to  whom  the  property  had  been  so  conveyed  was 

361 


*307  ELLISON  V.  KLL'SON. 

entitled  to  retain  it,  until  be  should  be  discharged  from  his  liabil- 
ity as  surety  ;   Wilding  v.  Richards,  1  Coll.  055. 

And  it  seems  to  be  doubtful  whether.,  after  the  trust  has  been 
communicated  to  some  of  the  creditors,  it  can  after  satisfying  them 
be  revoked  by  the  settlor  as  to  the  other  creditors  :  Griffith  v.  Rick- 
etts,  7  Hare,  307;  see  also,  Gurney  v.  Lord  Oranmore,4:  Ir.  Ch.  Bep. 
470,  ^.  C,  5  Ir.  Ch.,  Rep.  436. 

The  execution,  however,  of  a  trust  deed  for  (amongdt  other  things) 
the  payment  of  creditors  does  not  constitute  one  of  the  creditors, 
who  becomes  so  after  the  execution  of  the  deed,  and  was  not  a  party 
to  it,  a  cestui  que  trust,  entitled  to  call  on  the  trustee  to  execute  the 
trusts  of  the  deed  :  La  Touche  v.  EarlofLucan,  7  C.  &  F.  772. 

Where  a  creditor  is  party  to  a  deed  whereby  his  debtor  conveys 
property  to  a  trustee  to  be  applied  in  liquidation  of  the  debt  due  to 
that  creditor,  the  deed  is,  as  to  that  creditor,  irrevocable.  A  valid 
trust  is  created  in  his  favour,  and  the  relation  between  the  debtor 
and  trustee  is  no  longer  that  of  mere  principal  and  agent  (per  Lord 
Cranworth,  V.-C,  in  Mackinnon  v.  Stewart,  1  Sim.  N.  S.  88,  and 
see  Glegg  v.  Rees,  7  L.  R.  Ch.  App.  71).  And  that  which  is  true 
where  a  single  creditor  is  the  cestui  que  trust,  is  at  least  equally  so 
where  there  are  many  creditors.   lb. 

Nor  does  the  creditor  executing  the  deed  become  less  a  cestui  que 
trust,  because  he  gives  nothing  to  the  debtor,  as  a  consideration  for 
the  trust  created  in  his  favour,  or  because  it  was  the  voluntary,  un- 
solicited act  of  the  debtor  to  create  the  trust  :  (per  Lord  Cramvorth, 
V.-C,  in  Mackinnon  v.  Steivart,  1  Sim.  N.  S.  88  ;  see,  also.  Field  v. 
Lord  Donoughmore,  2  Dru.  &  Walsh,  630,  1  Dru.  &  War.  227;  Gur- 
ney \.  Lord  Oranmore,  4  Ir.  Ch.  Rep.  473;  5  Ir.  Ch.  Rep.  436;)  or 
because  he  was  party  to  the  deed  in  another  right  (Montefiore  v. 
Browne,  7  Ho.  Lo.  Ca.  241,  266). 

And  though  there  is  a  time  limited  in  the  deed  within  which 
creditors  must  execute  it,  if  by  accident  any  of  them  fail  to  do  so, 
they  will  not  necessarily,  in  equity  at  any  rate,  should  the/  act 
under  the  deed  (Sjjottiswoode  v.  Stockdale,  Sir  G.  Coop.  Rep.  102; 
Raworth  v.  Parker,  2  K.  &  J.  163),  or  upon  the  faith  of  it  (Nichol- 
son V.  Tutin,  2  K  &  J.  18),  or  acquiesce  in  it  [In  re  Babers 
[  *  307  ]  Trusts,  10  L.  R.  Eq.  554),  be  excliided  from  the  ^-  benefit 
of  the  trusts  (Dunch  v.  Ke7it,  1  Vern.  260;  Field  v.  Lord 
Donoughmore,  1  Dru.  &  War.  227;  and  see  Lane  y.  Husband,  14 
Sim.  661;  Whitmore  v.  Turquand,  1  J.  &  H.  444;  3  De  G.  F.  & 
Jo.  107;  Biron  v.  Mount,  24  Beav.  642),  though  they  might  not  be 
allowed  to  disturb  any  dividend  already  made  amongst  the  cred- 
itors Broadbent  v.  Thornton,  4  De  Gex  &  Sm.  65;  Field  v.  CooA-.  23 
Beav.  600);  but  the  Court,  before  it  permits  a  crediior,  who  has 
not  executed,  to  take  a  benefit  under  a  deed,  is  bound  to  see  that  he 
has  performed  all  the  fair  conditions  of  such  deed,  and  if  he  has 
taken  any  step  inconsistent  with  its  provisions,  he  will  be  deprived 
of  all  advantage  therefrom  (Field  v.  Lord  Donoughmore,  1  Dru.  & 
362 


ELLISON  V.  ELLISON.  *  308 

War.  227;  Drever  v.  Maivdesley,  10  Sim.  511;  Forbes  v.  Limond,  4 
Do  a.  M.  k  G.  2U8). 

A  creditor  wl:o  for  a  1od((  tiino  delays  (Gould  v.  Robertson,  4  De 
G.  &  (Sm.  501)),  or  if  bo  refuses,  to  execute  sncb  deed  within  the 
time  limited,  and  does  not  retract  bis  refusal  witbin  sucb  time 
(Johnson  v.  Kershaw,  1  Do  G.  <fc  Sm.  2()0),  and  d  fortiori  if  bo  bas  set 
up  a  title  adverse  to  tbe  deed  (Watson  v.  Knight,  10  Beav.  800; 
Brandling  v.  Plummer,  0  W.  R.  (V.  C.  K. )  117);  In  re  Mereditb, 
Meredith  \.  Facey,  29  Cb.  D.  745;  will  not  be  allowed  to  claim  tbe 
benetit  of  its  provisions. 

Tbe  principle  according  to  wbicb  ])roperty  vested  in  trustees  for 
tbe  j)urposo  of  distribution  among  creditors,  is  revocable  on  tbe 
ground  of  its  being  a  more  arrangement  for  tbe  benefit  of  tbe  set- 
tlor and  wbicb  bo  can  tberefore  at  any  time  revoke,  will  not,  it  seems, 
bo  applied  as  between  tbe  settlor  and  persons  wbo  are  purely  tbe 
objects  of  bis  bounty,  tbo  former  baving  appointed  an  agent  to  ad- 
minister tbe  l)ounly,  and  declared  for  whom  it  was  intended:  Pater- 
son  v.  Murphy,  11  Hare,  88. 

Nor  will  tbe  principle  apply  to  a  case  where  tbe  trust  is  to  come 
into  operation  only  on  the  death  of  its  author,  and  where,  subject  to 
tbe  trust  for  payment  of  debts,  the  lands  charged  are  conveyed  by 
way  of  boiinty  to  a  third  person,  inasmuch  as  in  such  a  case  the 
settlor  va\\.?>i  2)Timd  facie  be  understood  to  be  dealing  with  bis  prop- 
erty as  if  be  were  disposing  of  it  by  will,  and  tberefore  as  contem- 
plating bounty  throughout.  Synnot  v.  Simpson,  5  H.  L.  Cas.  121, 
139,  141.  But  see  Montefiore  v.  Broione,  7  Ho.  Lo.  Ca.  241,  206; 
Burroires  v.  Gore,  6  Ho.  Lo.  Ca.  907. 

Upon  the  deatb  of  the  debtor  wbo  bas  for  his  own  convenience 
execiited  a  deed  of  mere  agency  for  tbe  payment  of  bis  creditors,  and 
assuming  that  it  bas  not  been  communicated  to  or  acted  upon  by 
tbo  creditors  so  as  to  create  a  trust  in  their  favour,  it  bas  been  ar- 
gued, but  not  it  seems  decided,  that  such  deed,  considered  in  tbe 
light  of  an  authority  given  to  an  agent,  is  revoked  by  the 
death  of  *"  tbo  principal.  See  Wilding  v.  Richards,  1  [  *  308  ] 
Coll.  060. 

Wbetber  this  is  so  or  not,  the  trustees,  it  seems,  even  in  the 
absence  of  any  ultimate  limitation  in  favour  of  the  settlor,  would 
bold  tbe  property  in  trust  for  bis  legal  or  personal  representatives, 
wbo  would  take  by  way  of  resulting  tnist  whatever  remained  in 
their  hands  undisposed  of  in  favour  of  the  creditors. 

It  is  moreover  clear  that  tbe  credit-u'  under  a  deed  of  sucb  a 
nature  does  not  l)y  the  deatb  of  the  settlor,  acquire  arty  right  to  en- 
force a  trust  in  his  own  favour  w^iicb  he  bad  not  during  the  life  of 
the  settlor:  Garrard  v.  Lord  Lauderdale,  3  Sim.  1;  Synnot  \.  Simp- 
son, 5  Ho.  Lo.  Ca.  139. 

Where  a  debtor  assigns  property  for  the  benefit  of  bis  creditors, 
altbougb  no  creditor  may  be  aAvaro  of  tbe  assignment,  tbe  assignee 
may,  novertbeless,  take  proceedings  in  equity  to  recover  tbe  prop- 

363 


*  309  ELLISON  V.  ELLISON. 

erty:  GUgg  v.  Rees,  1  L.  R.  Ch.  App.  70).  [An  assignee  for  the 
benefit  of  creditors  may  sue  to  recover  property  conveyed  away  by 
his  assignor  in  fraud  of  creditors,  if  such  property  is  required  to 
satisfy  the  assignor's  debts.  But  if  the  evidence  shows  that  the  as- 
signor used  the  property  to  payoff  a  debt  justly  due  by  him,  no  ac- 
tion will  lie  to  recover  it  back:  Pillsbury  v.  Kingon,  33  N.  J.  Eq. 
287;  Sweetserv.  Camp  (Mich.),  29  N.  W.  Eep.  511,  and  note;  Fos- 
ter V.  Knowles  (N.  J.),  7  Atl.  Rep.  295  and  note.] 

It  may  be  here  mentioned  that  in  bankruptcy  a  conveyance  or 
transfer'  of  property  voluntarily  made  in  trust  for  creditors  will 
amount  to  a  fraudulent  preference,  (see  note  to  Harman  v.  Fishar, 
L.  C.  Merc.  Law,  773,  3M  ed):  and  if  the  whole  of  the  debtor's 
property  be  included  in  the  deed  to  secure  creditors  for  pre-existing 
debts,  it  will  amount  to  an  act  of  bankruptcy  (lb.  p.  804;  and  see 
Siyencer  v.  Slater,  4  Q.  B.  D.  13;  Ex  parte  Trevor,  1  Ch.  D.  297; 
Ex  parte  Stevens,  20  L.  R.  Eq.  780). 

With  regard  to  the  question  whether  a  creditor  taking  out  exe- 
cution can  levy  his  debt  upon  property  included  in  a  mere  agency 
deed  in  favour  of  creditors  such  as  that  which  formed  the  subject 
of  litigation  in  Wahcyn  v.  Coutts,  3  Mer.  707,  3  Sim.  14,  it  seems 
to  have  been  held  at  law  that  he  could  not  do  so  (Pickstock  v. 
Lyster,  3  M.  &  S.  371;  EsUvick  v.  Caillaud,  5  T.  R.  420;  see  vide 
Owen  V.  Body,  5  Ad.  &  Ell.  28),  but  that  in  equity  such  a  deed  ought 
to  be  held  invalid  as  against  him  {Mackinnon  v.  Stewart,  1  Sim.  N. 
S.  90,  91;  Smith  \.  Hurst,  1  Coll.  705). 

Trust  deeds  for  the  benefit  of  creditors,  in  default  of  registration, 
either  under  the  192nd  or  194th  sections  of  the  Bankruptcy  Act,  1861 
(24  &  25  Vict.  c.  134,  repealed  by  32  &  33  Vict.  c.  83,  s.  20,  except 
as  to  its  past  operation),  cannot  be  received  in  evidence. 

Complete  trust  by  declaration  without  legal  transfer.] — Although 
there  may  have  been  no  actual  transfer  of  the  legal  interest  in  prop- 
erty to  trustees,  if  the  settlor  has  constituted  himself  a  trustee  for 
volunteers,  a  Court  of  equity  will  enforce  the  trusts.  This  is  w^ell 
illustrated  in  Exx)arie  Pye,  Ex  j^arteDubost,  18  Ves.  140, 145;  Post 
vol.  2.  [The  common  law  rules  in  reference  to  the  transfer  of  legal 
titles  has  beon  followed  in  equity  as  to  the  creation  of  equitable  es- 
tates, and  trusts  which  are  purely  voluntary,  must,  in  order  to  be 
effectually  created,  be  accompanied  by  the  the  delivery  of  the  sub- 
ject of  the  trust  or  by  some  act  so  strongly  indicative  of  the  donor's 
intention  as  to  be  tantamount  to  such  delivery:  Trough's  Estate,  25 
P.  F.  Smith,  115;  Cox  v.  Sprigg,  6  Md.  274;  Otis  v.  Beckwith,  49 

111.  121;  Taylor  v.  Staples,  8  R.  I.  170.]  In  that  case  M. 
[*309]   had   Ijy  letter,  directed  an  agent*  in  Paris  to  purchase  an 

annuity  for  a  lady,  which  was  accordingly  purchased,  but 
in  the  name  of  M.,  the  lady  being  at  that  time  married,  and  also 
deranged.  M.  afterwards  sent  to  his  agent  a  power  of  attorney  au- 
thorising him  to  transfer  the  annuity  into  the  lady's  name,  but  died 
364 


ELLISON  V.  KLLISON.  *  309 

before  the  trauHfer  was  made.  Lord  Eldon  bold,  that  although  the 
legal  interest  remained  in  M.,  he  had  constituted  himself  a  trustee 
for  the  lady.  "  The  question,"  says  his  lordship,  "  involves  the 
point,  whether  the  power  of  attorney  amounts  here  to  a  declaration 
of  trust?  It  is  clear  that  this  Court  will  not  assist  a  volunteer; 
yet,  if  the  act  is  comph^ed,  though  voluntary,  the  Court  will  act 
upon  it.  It  has  been  decided,  tliai,  upon  an  agreement  to  Irannfer 
stock,  this  Court  will  not  interpose;  but,  if  the  2)arty  had  declared 
himself  to  he  the  trustee  of  that  stock,  it  becomes  the  2>roperty  of  the 
cestui  que  trust  u-ithout  more,  and  the  Court  will  act  upon  it.  Upon 
the  documents  Ijefore  me,  it  does  appear,  that,  though  in  one  sense 
this  may  be  represented  as  the  testator's  personal  estate,  yet  he  has 
committed  to  writing  what  seems  to  me  a  sufficient  declaration  that 
he  held  this  jiart  of  the  estate  in  trust  for  the  annuitant."  And  see 
and  consider  Airey  v.  Hall,  2  Sm.  &  G.  31  p;  Parnell  v.  Hincjston, 
3  Sm.  &G.  337;  and  Kiddell\.  Farnell,  3  Sm.  &  G.  428,  appealed 
and  compromised,  5  AV.  K.  (L.J.)  793.  [When  a  person  is  pos- 
sessed of  the  legal  title  of  the  subject-matter,  be  may  create  a  valid 
trust  in  any  of  the  following  ways:  by  declaration  saying  that  be 
holds  the  property  in  trust;  by  a  declaration  saying  that  he  holds  the 
legal  title  in  trust  for  another  person,  or  by  transferring  the  legal  title 
to  a  third  person  for  the  benefit  of  the  cestui  que  trust:  Lloyd  v. 
Brooks,  34  Md.  33.]  In  Wheafley  v.  Purr,  1  Kee,  551,  H.  O.  di- 
rected her  bankers  to  place  2()()0/.  in  the  joint  names  of  her,children, 
J.  R.  W.,  M.  ^V.,  and  H.  W.,  and  her  own  as  trustee  for  her  child- 
ren. That  sum  was  accordingly  entered  in  the  books  of  the  bank- 
ers to  the  account  of  H.  O.  as  trustee  for  J.  R.  W.,  M.  W.,  and  H. 
W.  The  bankers  gave  H.  O.,  as  trustee  for  J.  R.  Vs.,  M.  V\'.,  and 
H.  W,,  a  promissory  note  for  the  amount,  with  interest  at  24-  per 
cent.,  and  she  gave  the  bankers  a  receipt  for  the  promissory  note. 
Lord  Langdale,  M.  R.,wa3  of  opinion  that  she  had  constituted  her- 
self a  trustee  for  the  plaintiffs,  her  children,  and  that  a  trust  was 
completely  declared,  so  as  to  give  them  a  title  to  relief.  See,  also, 
Vandenburg  v.  Palmer,  4  K.  &  J.  204;  Evans  v.  Jennings,  G  W. 
R.  (V.-C.  S.)  GIO. 

A  trust  relating  to  lands  must, under  the  7th  section  of  the  Statute 
of  Frauds,  be  manifested  and  proved  by  some  writing:  Foster  v. 
Hall,  3  Ves.  696;  Sviith  v.  Mattheivs.  3  De  G.  F.  &  J.  139;  9  W.  R. 
(L.J.)  644. 

[The  statute  does  not  require  trusts  of  realty  to  be  created,  but 
only  manifested  and  proved  by  writing.  Cbancellor  Kent  in  Movan 
Hays,  1  Johns.  Ch.  342,  says,  "  There  is  a  distinction  between  an 
agreement  and  a  trust  under  the  Statute  of  Frauds,  and  a  trust  need 
not,  like  an  agreement  bo  constituted  or  created  by  writing." 

The  distinction  is  of  importance  because  a  subsequent  written 
acknowledgment  of  a  trust  will  cause  the  interest  to  relate  back  to 
the  date  of  its  original  creation,  so  as  to  bring  it  within  the  opera- 
tion of  a  will  of  the  cestui  que  hmst  executed  before  the  written 

£65 


*  310  ELLISOX  V.  ELLISON. 

acknowledgment  but  after  tbe  verbal  creation:     Soflford  v.  Eantoi;!, 
12  Pick.  233;  Sime  v.  Howard,  4  Nevada,  483;  Barrell  v.  Joy,   10  ' 
Mass.  223. 

In  Maine  a  trust  must   be    "  created   and  declared   in   writing." 
Gerry  v.  Stimson,  60  Me.  188. 

In' Vermont,  Illinois  and  Massachusetts,  "  declarations  or  creations 
of  trust  must  be  manifested  and  proved  in  writing."] 

But  a  declaration  by  parol  of  the  trusts  of  personal  property  will 
be  sufficient  to  create  a  trust.  [Personal  chattels  are  not  within  the 
statute  and  may  be  proved  by  parol:  Higgenbottom  v.  Peyton,  3 
Rich.  Eq.  398;  Barkley  u  Lane,  6  Bush  (Ky.),  587;  Day  u  Rath,  18 
N.  Y.  447;  Moffitt  v.  Rynd,  19  P.  F.  Smith,  380;  Hooper  v.  Holmes, 
3  Stock,  Ch.  122;  Kirkpatrick  v.  Davidson,  2  Kelly,  297.]  Thus  in 
M'Faddeu  v.  Jenkyns,  1  Ph.  153,  A.  had  sent  a  verbal  direction  to 
B.,  who  owed  him  500Z.,  to  hold  the  debt  in  trust  for  C,  a  volunteer; 
B.  assented  to  and  acted  upon  the  direction,  by  paying  C. 
[  *  310]  10/.,  as  part  of  the  trust  money.  Lord  Lyndhurst,  *affirm- 
ing  the  decision  of  Sir  J.  Wigram,  Y.-C.  (reported  1  Hare, 
458),  held,  that  a  declarationhy  X)CL'^'olti-as sufficient io  creoie  B.ix\x.^i 
of  personal  property,  and  that,  as  the  debtor  had  assented  to  and 
acted  upon  the  direction,  a  complete  and  irrevocable  trust  was  im- 
pressed upon  the  money.  And  see  Peckham  v.  Taylor,  31  Beav.  250; 
Middleton  v.  Pollock,  4  Ch.  D.  49;  Makeoivn  v.  Ardagh,  10 1.  R.  E.  445. 

Where,  however,  there  is  a  declaration  of  trust  by  parol,  if  the  case 
be  one  of  doubt  or  difficulty  upon  the  words  which  have  been  sup- 
posed to  have  been  used,  the  Court  will  give  weight  to  the  considera- 
tion that  the  words,  not  being  committed  to  writing  in  any  definite 
and  unquestionable  form,  may  not  be  the  deliberately  expressed  sen- 
timents of  the  party:  Dipple  v.  Corles,  11  Hare,  183;  and  see  Pater- 
son  V.  Mii7phy,  lb.  91,  92.  [An  answer  in  Chancery  admitting  the 
trust,  will  not  be  sufficient  to  take  it  out  of  the  statute  if  the  defend- 
ant chooses  to  insist  upon  the  benefit  of  tbe  statute:  "Whiting  v. 
Gould,  2  Wis.  552;  Dean  v.  Dean,  1  Stock.  Ch.  425;  Perry  on  Trusts, 
Sec.  85.] 

In  the  following  cases  it  will  be  seen  what  will  be  considered, 
although  not  in  terms,  to  be  equivalent  to  a  declaration  of  trust: 
Frampton  v.  Frampton,  4  Beav.  287 ;  James  v.  Bydder,  4  Beav.  605 ; 
Thorpe  v.  Oiven,  5  Beav.  224;  Stapleton  v.  Stapleto7i,  14  Sim.  186; 
Wilcocks  V.  Hannyngton,  5  Ir.  Ch.  Rep.  38;  Donaldson  v.  Donald- 
son, Kay,  716,  717;  Woodroffey.  Johnston,  4: Ir.  Ch.  Rep.  319;  Gray 
v.  Chxiy,  2  Sim.  N.  S.  273:  Ouseley  v.  Anstndher,  10  BeaA'.  461; 
Moore  v.  Darton,  4  Do  G.  &  Sm.  517;  Paterson  v.  Murphy,  11  Hare, 
88;  Lloyd  \.  Chiine,  2  Giff.  441;  Steele  v.  Waller,  28  Beav.  466; 
Maguire  v.  Dodd,  9  Ir.  Ch.  Rep.  452;  Arthur  v.  Clarkson,  35  Beav. 
458;  Gee  v.  Liddell,  lb.  621;  Miller  v.  Harrison,  5  Ir.  Eq.  324;  and 
see  the  remarks  of  Sir  John  Bomilly,  M.  R.,  in  Price  v.  Price,  14 
Beav.  602;  In  re  Shield,  Pethybridge  v.  Burrow,  W.  N.,  May  24, 1884, 
p.  1V7.  S.  a,  reversed  ^Y.  N.,  1885,  April  25,  p.  88. 
366 


ELLISON  V.  ELLISON.  *  31 1 

[Formalities  are  of  minor  importanc's  since  if  the  transaction  can- 
not be  effectual  as  a  trust  executed,  it  may  be  enforced  as  a  contract: 
Lewin  on  Trusts,  154  (Text  Book  Series);  Baldwin  v.  Humphries, 
44  N.  Y.  009;  Taylor  v.  Pownall,  10  Leigh.  1S3.] 

The  dicfuvi  attributed  to  Lord  Cran worth,  C,  in  Scales  v.  Maude, 
0  De  Gex,  Mac.  &  G.  51.  to  the  effect  that  a  mere  declaration  of  trust 
by  the  ownerof  jn-operty  in  favour  of  a  volunteer  is  inoperative,  and 
that  the  Court  of  Chanccn-y  will  not  interfere  in  such  a  case,  is  un- 
supported by  the  authorities,  and  was  admitted  by  his  Lordship  in 
Jones  V.  Lock,  1  L.  R.  Ch.  Ap.  28,  to  be  "clearly  wrong  as  a  general 
statement  of  the  law." 

The  consent  of  a  married  woman,  given  before  commissioners,  for 
the  transfer  and  payment  to  her  husband  of  sums  of  stock  and  cash 
standing  in  Court  to  her  separate  account  has  been  held  not  to  amount 
to  a  declaration  of  trust,  and  that  it  was  competent  to  her,  at  any  time 
before  the  transfer  had  been  completed,  to  retract  her  consent:  Pen- 
fold  V.  Mould,  4  L.  R.  Eq.  502. 

A  mere  expression  of  an  intention  to  divide  property  with,  or  to 
leave  it  to,  others  will  not,  it  seems,  be  held  to  amount  to  a 
*  declaration  of  trust,  and,  like  a  mere  promise  to  give,  will  [  *  311  ] 
not  be  enforced  in  equity:  Dipple  v.  Corles,  11  Hare,  183; 
Re  Glover,  2  J.  &  H.  186;  and  see  In  re  Mills's  Estate,  7  W.  R.  (V.- 
C.  K.)  372;  Fmiies  v.  Forbes,  6  W.  R.  (V.-C.  W.)  92;  Jones  x.  Lock, 
1  L.  R.  Ch.  App.  25;  Lister  v.  Hodgson,  4  L.  R.  Eq.  30. 

[Where  there  is  an  intention  merely  to  create  a  trust,  and  the  set- 
tlor takes  no  further  action,  it  cannot  be  enforced:  Banks  ^^  May, 
3  A.  K.  Marsh,  435;  Lanterman  u  Abernathy.  47  111.  437;  Evans  ■y. 
Battle,  19  Ala.  398;  Minturn  v.  Seymour,  4  Johns.  Ch.  498;  Swan 
V.  Frick,  34  Md.  139.] 

AVhere  a  paper  is  of  a  testamentary  character,  but  invalid  from 
want  of  proper  execution,  it  cannot  be  enlarged  or  converted  into  a 
declaration  of  trusts,  Warriner  v.  Rogers,  16  L.  R.  Eq.  340,  353; 
Milroy  v.  Lord,  4  De  G.  F.  &  J.  274.  [If  a  settlor  designs  to  ef- 
fect a  valid  settlement  in  a  certain  mode  and  the  settlement  fails  to 
take  effect  by  reason  of  an  incomplet  disposition,  it  cannot  take 
effect  in  another  mode  not  intended  by  the  settler:  See  American 
notes  to  Brett's  Lead.  Cas.  in  Mod.  Eq.  58  (Text  Book  Series).] 

A  declaration  of  trust  by  the  equitable  owner  of  a  chose  in  ac- 
tion, as  for  instance  of  a  bond  vested  in  trustees,  will  be  supported: 
See  Collinson  v.  Patrick,  2  Kee,  123,  in  which  case  in  giving  judg- 
ment. Lord  Langdale,  M.  R.,  observed,  "A  declaration  of  trust  is 
considered,  in  a  court  of  equity,  as  equivalent  to  a  transfer  of  the 
legal  interest  in  a  court  of  law;  and,  if  the  transaction  by  which  the 
trust  is  created  is  complete,  it  will  not  be  disturlied  for  want  of 
consideration.  If  this  had  been  a  transaction  resting  on  an  agree- 
ment not  conferring  the  legul  iuter<  st  — if  it  had  been  an  executory 
contract,  this  court,  iu  the  absence  of  ci^nsidnalion,  \vi  uld  not  have 
given  effect  to  it ;  but,  ifichat  has  been  done  is  equivalent  to  a  ti^ans- 

367 


*  312  ELLISON  V.  ELLISON. 

fei'  of  the  legal  interest,  the  parties  in  whose  favour  the  trust  is 
created  are  entitled  to  have  the  benefit  of  it  in  this  court;  and  I  am 
of  opinion  that  this  deed  gives  an  interest  to  the  plaintiffs  which 
does  so  entitle  them:  see  also  Tierney  v.  Wood,  19  Beav.  330; 
Kronheim  v.  Johnsoyi,  7  Ch.  D.  60.  [A  mere  intention  to  convey 
the  property  upon  trust,  will  not  be  sufficient  if  the  proper  steps 
are  not  taken  for  the  purpose  of  making  a  valid  transfer  of  the  legal 
title  to  the  intended  trustee:  Cressman's  Appeal,  6  Wright  (Pa.), 
147;  Henderson  v.  Henderson,  21  Mo.  379 ;  Gilchrist  u  Stevenson,  8 
Barb.  9.] 

Upon  the  same  principle,  if  the  equitable  owner  of  property 
vested  in  trustees,  as  in  the  principal  case,  assigns  it  to  them,  or 
directs  them  to  apply  it  upon  trusts  declared  in  favour  of  volun- 
teers, a  fortiori  if  the  trustees  accept  and  act  upon  the  trust, 
they  will  be  enforced  in  equity.  [If  an  absolute  conveyance  is 
made,  no  subsequent  declaration  can  deprive  the  grantee  of  his 
beneficial  interest:  Ivory  v.  Burns,  6  P.  F.  Smith,  308;  Brown 
V.  Brown,  12  Md.  87;  Chapman  v.  Wilbur,  3  Oregon,  326;  Daw- 
son V.  Dawson,  Cheves  Eq.  (S.  C.)  148;  Johnson  v.  Clarkson, 
3  Rich.  Eq.  305.]  In  Ry croft  v.  Christy,  3  Beav.  238,  Mrs. 
Ry croft,  the  cestiii  que  trust  of  money  in  the  hands  of  a  trustee, 
by  deed  without  a  consideration  directed  part  of  the  dividends  to 
be  paid  by  him  for  the  maintenance  of  an  infant,  a  stranger  to  Mrs. 
Rycroft,  and  covenanted  to  indemnify  the  trustee,  and  agreed  to 
allow  the  same  out  of  the  dividends  of  the  trust  fund.  The  trustee 
accepted  the  new  trust  and  acted  upon  the  deed.  Lord  Langdale, 
M.  R.,  held,  that,  as  there  was  no  further  instrument  or  formality 
to  be  executed,  fi'om  the  moment  when  the  direction  was  signed 
and  accepted  by  the  trustee  a  valid  and  executed  trust  was  created, 
which  Mrs.  Rycroft  could  not  revoke.  See  also  Meek  v.  Kettleicell, 
1  Hare,  471;  WFadden  v.  Jenkins,  1  Hare,  458;  1  Ph.  153;  Bent- 
ley  V.  Mackay,  15  Beav.  12;  Bridge  v.  Bridge,  16  Beav. 
[  *  312]  *322;  Donaldson  v.  Donaldson,  Kay,  711;  Gilbert  \.  Over- 
ton, 2  Hem.  &  Mill.  110;  Lambe  v.  Orton,  1  Dr.  &  Sm. 
125. 

It  does  not,  however,  seem  now  to  be  considered  essential  to  the 
validity  of  the  creation  of  a  trust  by  the  beneficial  owner  of  prop- 
erty, that  there  should  be  an  acceptance  or  declaration  of  the  trusts 
by  the  trustees  in  whom  the  legal  interest  is  vested.  See  Tierney 
V.  Wood,  19  Beav.  330.  There  land  and  stock  were  vested  in  the 
plaintiff  Tierney,  in  trust  for  Wood,  and  the  latter  signed  a  docu- 
ment addressed  to  Tierney,  directing  that  the  land  and  stock  should 
after  his  death  be  held  for  the  benefit  of  certain  persons.  The  doc- 
ument was  not  attested.  It  was  held  by  Sir  J.  Eomilly,  M.  R.,  that 
an  effectual  trust  within  the  meaning  of  the  Statute  of  Frauds  had 
been  declared  by  the  beneficial  owner,  and  that  the  document  was 
not  testamentary.  "The  authorities,"  said  his  Honor,  "show  that 
the  xjroper  ]}erson  to  create  the  trust  in  personal  property,  is  tlieper- 

368 


ELL'SON  r.  ELLISON'.  *31.J 

son  in  whom  the  beneficial  interest  of  the  property  is  vested;  and  the 
trust  boin":  created  by  the  beneticial  owner,  tlio  trustee  is  bound, 
and  if  disposed  to  refuBo  may  be  compelled  to  obey  it.  I  am  at  a 
loss  to  find  any  reason  which  should  cause  this  document  to  be 
effectual  as  a  declaration  of  trust,  so  far  as  the  stock  is  concerned, 
and  not  so,  so  far  as  the  land  is  concerned.  It  is  obvious,  that  in 
both  cases  the  person  enabled  by  law  to  declare  t\n)  trusts  is  the 
same.  In  the  case  before  me,  there  can  bo  no  doubt  that  if  Mr. 
Tierney  had,  in  pursuance  of  this  paper,  signed  a  document  to  the 
same  effect,  stating  that  he  held  the  property  on  the  trusts  therein 
mentioned,  the  trusts  would,  apart  from  any  question  on  the  con- 
struction of  the  document,  have  been  tnWy  and  completely  declared; 
and  it  is  also  clear,  that  if  the  trustee  had  declared  that  he  held  the 
property  on  any  trusts  not  recognized  or  sanctioned  by  Wood,  the 
beneficial  owner,  such  declaration  of  trust  "woiild  have  been  insuffi- 
cient and  unavailing,  and  would  have  given  no  interest  to  the  sup- 
posed cestui  que  trust.  A  declaration  of  trust  in  writing,  by 
Tierney,  following  that  of  Wood,  would  therefore  have  been  merely 
formal,  and  would  have  been  valid  only  so  far  as  it  followed  Lis  in- 
structions, and  would  have  been  void  to  the  extent,  if  any,  that  it 
departed  from  his  directions.  I  think  that  the  fair  conclusion  to 
be  drawn  from  these  considerations  is,  that  the  person  to  create  the 
trust,  and  the  person  who  is  by  law  enabled  to  declare  the  trust, 
are  one  and  the  same,  and  that,  consequently,  the  beneficial  owner 
is  the  person,  by  law,  enabled  to  declare  the  trust."  See  also 
Donohoe  v.  Conrahy,  2  Jo.  &  L.  689;  Kronheim  v.  Johnson,  7  Ch. 
D.  60. 

*Nor  is  notice  of  the  declaration  of  trust  to  the  cestui  [  *  313  ] 
que  trust  necessary:   Tate  v.  Leithead^  Kay,  658.     [If  the 
cestui  que  trust  cannot  bo  identified,  the  trust  cannot  bo  executed: 
Dillaye    v.   Greenough,   -15  N.  Y.  438;  Ownes  v.  Ownes,  8  C.   E. 
Green,  60. 

It  is  not  necessary  that  the  beneficiary  have  knowledge  of  the 
settlement  if  he  afterwards  accepts  and  ratifies  it:  Weston  v. 
Baker,  12  Johns.  Ch.  276;  Shepherd?;.  M'Evers,  4  Johns.  Ch.  136.] 

Although  a  man  at  law  could  not  make  a  gift  of  chattels  to  his 
wife,  he  might  do  so  in  equity,  not  only  by  the  intervention  of  an- 
other person  as  trustee,  but  also  by  constituting  himself  a  trustee, 
for  his  wife.  Lucas  v.  Lucas,  1  Atk.  271;  McLean  v.  Longlands,  5 
Ves.  79;  Walter  \.  Hodge,  2  Swanst.  107;  In  re  Whittaker,  Whit- 
faker  v.  Whittaker,  21  Ch.  D.  657.  [See,  Freeman  v.  Freeman,  9 
Mo,  772;  Vance  v.  Nogle,  20  P.  F.  Smith,  79;  Baron  r.  Baron.  24 
Vt.  375;  Trenton  Banking  Co.  v.  Woodruff,  1  C.  E.  Green,  117. 
In  Baddely  v.  Baddely,  (9  Ch.  D.  113),  a  husband,  after  reciting 
in  a  deed  poll  that  he  was  beneficially  entitled  to  the  ground  rents 
intended  to  bo  settled,  assigned  them  to  his  wife  as  though  she  were 
a  single  woman,  and  it  was  held  that  this  amounted  to  a  declara- 
tion of  trust,  and  the  court  ordered  it  to  bo  carried   into   effect 

24  WHITE  ON   EQUITY.  369 


*  313  ELLISON  V.  ELLISON. 

This  case  was  doubted  in  a  later  decision  (In  re  Ercton,  17  Ch. 
D.  416). 

In  Crawford's  Appeal  (11  P.  F.  Smith,  52),  a  husband  credited 
his  wife  with  a  sum  of  money  on  his  books,  and  it  was  held  that 
this  was  an  effectual  declai-ation  of  trust  iu  the  wife's  favor.] 

But  now  she  may  acquire  and  hold  property  as  her  ireparate 
property  as  a  feme  sole  without  a  trustee,  45  &  40  Vict.  c.  75,  s.  1. 

There  must,  however,  be  clear  and  distinct  evidence  corrobora- 
tive of  the  wife's  testimony,  in  order  to  establish  a  gift  from  her 
husband.  [Grant  v.  Grant,  34  Beav.  623;  In  re  Breton's  Estate, 
17  Cn.  D.  416;  7u  re  Finch,  23  Ch.  D.  267,  but  a  mere  declaration 
of  intention  to  give  will  not  be  sufficient:  lb.  [In  America  the 
tendency  is  to  favor  trusts  for  a  wife  and  children,  but  a  wider 
range  of  relationship  would  not  be  so  favored:  Buford  v.  McKee, 
1  Dana,  107;  Bright  v.  Bright,  8  B.  Mon.  194;  Mclntyrer.  Hughes, 
4  Bibb.  186.] 

It  seems,  moreover,  that  presents  made  by  a  husband  to  his  wife, 
whether  in  contemplation  of,  or  subsequent  to  their  marriage,  are 
the  separate  property  of  the  wife,  and  do  not  form  part  of  the  hus- 
band's personal  estate:  lb. 

If  a  testator  by  icill  gives  personal  property  upon  trusts  to  be 
afterwards  declared,  he  cannot,  either  by  any  instrument  not  duly 
executed  as  a  will  or  codicil,  or  by  parol,  make  any  valid  declara- 
tion of  trust;  and  the  property  will  go  either  to  the  next  of  kin  or 
the  residuaiy  legatees:  Johnson  v.  Ball,  5  De  G.  &  Sm.  85.  [A 
deposit  of  money  in  a  bank  to  the  credit  of  another  will  constitute 
a  valid  declaration  of  trust:  Taft  v.  Bowker,  132  Mass.  277;  Gar- 
ish V.  New  Bedford  Inst,  for  Saving,  128  Mass.  159;  Blanchard  v. 
Sheldon,  43  Vt.  512.] 

Imperfect  gift  as  distinguished  from  a  declaration  oftriist.^ — We 
must,  always,  carefiily  distinguish  that  class  of  cases  in  which  the 
settlor  constitutes  himself  a  trustee  for  volunteers,  from  another 
class  of  cases  in  which  a  person  has  ineffectually  atfem2:>ted  by  an 
imperfect  gift,  to  confer  the  ivhole  interest  upon  volunteers  or  trus- 
tees for  their  benefit;  for  it  has  been  repeatedly  determined,  that 
the  most  clear  intention  to  confer  an  interest  will  not  be  sufficient 
to  create  a  trust  in  favour  of  a  volunteer.  [See  Bond  v.  Bunting 
(28  P.  F.  Smith),  Judge  Hare  (whose  opinion  was  adopted  by  the 
Supreme  Court)  said,  "It  was  established,  at  an  early  period,  that 
the  transfer  of  the  legal  title,  in  trust,  for  a  third  person,  would 
ve.st  the  beneficial  interest  in  the  latter.  Such  was  the  origin  of  use 
and  subsequently  of  trusts.  A  declaration  of  tmst,  under  these 
circumstances,  substantiates  the  existence  of  a  duty,  which  would  be 
oblioratory,  independently  of  the  declaration.  But  it  does  not  fol- 
lov/  that  an  admission  can  give  rise  to  a  fiduciary  obligation  where 
none  exists.  The  ordinary  power  of  a  chancellor,  said  Gibson,  C. 
J.,  in  Read  v.  Robinson,  6  W.  &  S.  329,  extends  no  further  than 
370 


ELLISON  V.  KLLISON.  *  318 

the  execution  of  a  trust  suiliciently  framed  to  put  the  title  out  of 
the  grantor,  or  the  execution  of  an  agreement  for  a  trust  founded 
on  a  valuable  consideration;  and  the  language  of  the  same  judge, 
in  Morrison  v.  Beires,  2  W.  &  S.  80,  shows  that  he  regard (-d  a  de- 
claration of  trust  as  inoperative  where  it  does  not  rest  on  an  ante- 
cedent ol)ligation. 

"In  this  uncertainty  we  may  revert  to  principles.  A  declaration 
of  trust  by  the  owner  of  property  in  favor  of  a  volunteer  has  no 
peculiar  efficacy.  It  is  simply  a  gift,  which  derives  its  force  from 
the  will  of  the  donor.  As  applied  to  land,  it  is,  consequently,  in- 
valid, if  not  under  seal;  and  j)erhaps  even  then,  unless  the  estate 
lies  in  grant.  AVhere  the  law  prescribes  the  mode  of  conveyance,  it 
must  be  followed.  "When,  however,  there  are  no  legal  means  of 
transfer,  any  words  expressing  an  intention  to  confer  a  present  in- 
terest may  be  eftectual  in  equity.  There  can  be  no  clearer  manifes- 
tation of  a  design  to  part  with  the  right  of  property  in  favor  of  an- 
other than  an  absolute  assignment  to  him  or  for  his  use.  The  no- 
tion that  a  gift,  which  would  be  valid  if  made  through  a  declara- 
tion of  trust,  will  fail  if  put  in  the  form  of  an  assignment,  was 
accordingly  repudiated  in  liichardson  r.  Richardson,  Law  Rep.,  3 
Eq.  686. 

"The  question  was,  whether  the  beneficial  interest  in  certain 
promissory  notes  passed  by  voluntary  assignment  of  all  the  donor's 
personal  estate.  She  did  not  endorse  the  notes,  and  the  legal  title 
consequently  remained  in  her.  The  chancellor  said  that  it  was  im- 
possible to  contend,  after  the  decision  in  Kekewich  v.  Manning,  1 
DeG.  M.  &  G.  176,  that  the  beneficial  interest  did  not  pass  by  the 
assignment,  but  because  the  decision  in  that  case  was  not  merely 
that  a  person,  who,  being  entitled  to  a  reversionary  interest  or  to 
stock  standing  in  another's  name,  assign  it  by  a  voluntary  deed 
thereby  possess  it  notwithstanding  that  he  does  not  in  fonnal  terms, 
declare  himself  to  be  a  trustee  of  the  property;  but  it  amounts  to 
this,  that  an  instrument  executed  as  a  present  and  complete  assign- 
ment is  equivalent  to  a  declartion  of  irwA.  '"Here,  as  in  Keke- 
wich i\  Manning,  the  instrument  was  under  seal,  but  the  ratio  deci- 
dendi was  broad  enough  to  include  an  assignment  by  parol.  Ac- 
cordingly, where  the  donor  signed  and  delivered  the  following 
memorandum  to  his  physician,  "I  hereby  give  and  make  over  to 
Dr.  Morris  ftn  India  bond,  number  D.  506,  value  10,000,  as  some 
token  for  his  kind  attention  to  me  during  illness" — Lord  Romilly 
said,  "the  writing  is  equivalent  to  a  declaration  of  trust.  If  the 
donor  had  said:  "I  undertake  to  hold  the  bond  for  you,"  that  would 
have  been  a  declaration  of  trust,  though  there  had  been  no  delivery. 
This  amounts  to  the  same  thing,  and  Dr.  Morris  is  entitled  to  the 
bond."     Bro.  Morgan  v.  Malleson,  Law  Rep.  10  Eq.  475. 

"The  decisions  have  advanced  step  by  step  to  this  conclu- 
sion, whi(  h  is  now  established  in  England.  The  case  of  Kennedy 
V.  AY  are  r>  ay  be  thought  to  indicate  that  it  does  not  prevail  in  Penn- 

371 


*314  ELLISON  t!.  ELLISON. 

sylvania.  I  have  ondeavored  to  show  that  the  English  authorities, 
on  which  Chief  Justice  Gibson  relied,  have  been  overruled.  If  this 
were  a  court  of  error,  our  course  would  be  clear.  As  a  tribunal 
of  the  first  instance,  we  ought  to  adhere  implicitly  to  the  rul- 
ings of  the  court  above.  If  the  case  of  Kennedy  v.  Ware  were 
identical  with  this,  it  would  control  our  judgment.  The  assign- 
ment there  was  by  parol.  Here  it  is  under  seal.  The  difference 
seems  to  be  immaterial  according  to  the  authorities,  but  it  affords 
other  consideration.  The  fund  is  given  in  trust  for  Jane  &  James 
S.  Bond.  They  are  described  in  the  instrument  as  the  children  of 
Jno.  R.  Bond.  If  they  are  also  Mi's.  Bond's,  there  is  a  meritorious 
consideration  arising  from  a  tie  of  blood.  It  seems  that  equity  will 
give  effect  to  a  provision  for  a  wife  or  child,  though  not  for  a  collat- 
eral relation:  See  Hayes  v.  Kershow,  1  Sandford,  Ch.  258;  Buford 
V-  McKee,  1  Dana,  107;  Denison  v.  Goehring,  7  Barr,  175;  Kennedy 
V.  Ware,  1  Id  447.  It  was  alleged  during  the  argument  that  these 
were  Bond's  children  by  a  former  wife,  but  this  does  not  appear  of 
record.  On  the  whole  we  deem  ourselves  entitled  to  uphold  the  as- 
signment.] The  leading  case  on  this  point  is  Antrobiis  v.  SmitJi, 
12  Ves.  39.  There  Gibbs  Crawford  made  the  following  indorsement 
upon  a  receipt  for  one  of  the  subscriptions  in  the  Forth  and  Clyde 
Navigation:  "I  do  hereby  assign  to  my  daughter,  Anna  Crawford, 
all  my  right,  title,  and  interest  of  and  in  the  enclosed  call,  and  all 
other  calls,  of  my  subscription  in  the  Clyde  and  Forth  Navigation." 
This  not  being  a  legal  assignment.  Sir  S.  Romilly  nvgned,  "that  the 
father  meant  to  make  himself  a  trustee  for  his  daughter  of  these 
shares."     But  Sir  W.  Grant,  M.  R.,  observed  "Mr.  Crawford  was 

no  otherwise  a  trustee  than  as  any  man  may  be  called  so 
[  *  314  ]  who  professes  to  give  property  by  an  instrument  ''■  incapable 

of  conveying  it.  He  was  not  in  form  declared  a  trustee; 
nor  was  that  mode  of  doing  what  he  proposed  in  his  contemplation. 
He  meant  a  gift.  He  says,  he  assigns  the  property.  But  it  was  a 
gift  not  complete.  The  property  was  not  transferred  by  the  act. 
Could  he  himself  have  been  compelled  to  give  effect  to  the  gift  by 
making  an  assignment  ?  There  is  no  case,  in  which  a  party  has 
been  compelled  to  perfect  a  gift,  which,  in  the  mode  of  making  it, 
he  has  left  imperfect.  ["If  the  settlor  proposes  to  convert  himself 
into  a  trustee,  then  the  trust  is  perfectly  created  and  will  be  en- 
forced as  soon  as  the  settlor  has  created  an  express  declaration  of 
trust,  intended  to  be  final  and  binding  upon  him,  and  in  this  case 
it  is  immaterial  whether  the  nature  of  the  property  be  legal  or 
equitable,  whether  it  be  capable  or  incapable  of  transfer:"  Lewin 
on  Trusts  (Text  Book  Series)  153;  Stone  v.  Hackett,  12  Gray,  227; 
Lane  r.  Ewing,  31  Mo.  75;  Dennison  v.  Goehring,  7  Barr,  175; 
Graham  v.  Lambert,  5  Humph.  595;  Ownes  v.  Ownes,  23  N.  J.  Eq. 
60.]  'There  is  locus  po^nitentioR  as  long  as  it  is  incomplete.'  So, 
in  Edwards  v.  Jones,  1  My.  &  Cr.  226,  where  the  obligee  of  a  bond 
signed  a  memorandum,  not  under  seal,  which  was  indorsed  upon 
372 


ELLISOX  V.  ELLISON.  *  315 

the  bond,  and  which  purported  to  be  au  assignment  of  the  bond, 
without  consideration,  to  the  ])erson  to  whom  the  bond  was  at  the 
same  time  dehvered,  Lord  Coltenham,  upon  the  authority  of  the 
doctrine  laid  down  in  Anlrobus  v.  Sniitk  (12  Yes.  3'J),  Avhich  he 
said  it  was  impossible  to  (piestion,  held,  that  the  gift  was  incomplete, 
and  that,  as  it  was  without  consideration,  the  Court  could  not  give 
effect  to  it.  So,  also,  in  Dillon  v.  Coppin,  4  My.  &  Cr.  647,  a  vol- 
untary assignment  of  East  India  Stock  and  shares  in  the  Globe  In- 
surance Company,  by  a  d(>ed  poll,  incapable  of  passing  such  prop- 
erty, was  held,  by  Lord  Cottenham,  C,  not  to  affect  the  settlor's  in- 
terest in  the  East  India  Stock  and  the  Globe  shares.  [The  trans- 
fer of  certificates  of  stock  is  sufficient  to  pass  the  title,  without  any 
change  upon  the  coi'poration's  books:  Sargent  v.  Ins.  Co.  8  Pick. 
90;  Eames  v.  Wheeler,  19  Pick.  444;  Blasdel  v.  Locke,  52  X.  H. 
23S;   Sherwood  v.  Andrews,  2  Allen,  79. 

If  a  sti'anger  is  to  be  the  trustee,  or  the  corporation  laws  require 
it,  the  rule  is  different:  Gilchrist  v.  Stevenson,  9  Barr,  9;  Lon- 
dale's  Estate,  29  Pa.  St.  407.] 

In  Searle  v.  Law,  15  Sim.  95,  A.  made  a  voluntary  assignment  of 
turnpike  road  bonds  and  shares  in  an  insurance  and  in  a  banking 
company  to  B.,  in  trust  for  himself  for  life,  and  after  his  death  for 
his  nephew.  He  delivered  the  bonds  and  shares  to  B.,  but  did  not 
observe  the  formalities  required  by  the  Turnpike  Act,  and  tho  deeds 
by  which  the  companies  were  formed,  to  make  the  assignment 
effectual.  Sir  L.  Shadicell,  V.-C,  held,  that  on  A.'s  death  no  interest 
in  either  the  bonds  or  the  shares  passed  by  the  assignment,  and  that 
B.  ought  to  deliver  them  to  the  executor  of  A.  "If  that  gentle- 
man," observed  his  Honor,  "had  not  attempted  to  make  an  assign- 
ment of  either  the  bonds  or  the  shares,  but  had  simply  declared,  in 
writing,  that  he  would  hold  them  upon  the  same  trusts  as  ai*e  ex- 
pressed in  tho  deed,  that  declaration  would  have  been  binding  U()on 
hitn;  and  whatever  bound  him,  would  have  bound  his  personal 
representative.  But  it  is  evident  that  he  had  no  intention  whatever 
of  being  himself  a  trustee  for  any  one,  and  that  he  meant  all  the 
persons  named  in  the  deed  as  cestuis  que  trustent  to  take  the  provi- 
sions intended  for  them  through  the  aperation  of  that  deed.  He 
omitted,  however,  to  take  the  proper  steps  to  make  that  deed  an 
efitectnal  assignment;  and,  therefore,  both  the  legal  and  the  benefi- 
cial interest  in  the  bonds  and  shares  vested  in  him  at  his  death." 
[Sufficient  delivery  to  pass  title  is  inferred  from  slight  evidence, 
and  intention  has  much  to  do  with  deliverv:  Moore  v.  Hazleton, 
9  Allen,  102;   Grangiac  v.  Arden,  10  Johns.  ^293.] 

*  Where  however  a  deed  assigning  shares  is  incomplete,  [  *  315  1 
as  not  amoianting  either  to  a  declaration  of  trust,  and 
from  not  having  been  registered  under  the  Companies  Clauses  Act 
1845  (8  Vict  c.  16,  ss.  14 — 20),  the  company  not  being  parties  to  tho 
suit,  the  Court  may  allow  a  I'easonable  time  to  institute  proceedings 
for  registration  if  so  advised:      West  v.  West,  9  L.  R.  Ir.  121. 

373 


*316  ELL'SON  V.  ELLISOX. 

"Where  a  mortgagee  in  fee  assigns  tlie  debt  secured,  but  neglects 
to  convey  the  legal  estate  to  tnastees  for  volunteers,  the  settlement 
being  incomplete  cannot  be  enforced.  See  Woodford  v.  Charnley, 
28  Beav.  96;  there  Alice  Fisher  was  mortgagee  in  fee  of  land  con- 
veyed to  her  to  secure  5000Z.  and  interest,  but  the  mortgage  deed 
contained  no  covenant  for  payment  of  the  5000Z.  The  mortgagor 
died  inestate.  Alice  Fisher  afterwards  executed  a  voluntary  settle- 
ment by  which  she  assigned  the  sum  of  5000?.  to  trustees,  and  gave 
them  a  power  of  attorney  to  recover  it.  The  legal  estate  teas  never 
conveyed  by  Alice  Fisher  to  the  trustees.  It  was  held  by  Sir  John 
Romilly,  M.  E..,  that  the  voluntary  settlement  was  incomplete  and 
could  not  be  enforced  against  the  settlor  or  any  person  claiming 
under  her.  See  also  Coningham  v.  Plunkett,  2  Y.  &  C.  C.  C. 
245;  Ward  v.  Audland,  8  Beav,  201;  Price  v  Price,  14  Beav.  598; 
Scales  V.  Maude,  6  De  Gex,  Mac.  &  G.  43;  Weale  v.  Olive,  17  Beav. 
252;  Peckham  v.  Taylor,  31  Beav.  250;  [An  equitable  mortgagee 
by  deposit  of  a  deed  cannot  pass  his  interest  in  the  property  by  a 
parol  voluntary  gift  accompanied  by  delivery  of  the  deed  and  as  his 
interest  in  the  deed  is  only  incidental  to  his  interest  in  the  mortgage, 
the  donee  has  no  right  to  retain  it:  In  re  Richardson  Shillito  v. 
Hebson  30  Ch.  D.  396.]  Lambert  v.  Overton,  13  W.  R.  (V.-C.  S.) 
227.  [An  imperfect  conveyance,  which  is  merely  voluntary,  will 
not  be  aided  or  enforced  in  equity:  Holland  v.  Hensley,  4  Clark, 
222;  Pringle  v.  Pringle,  9  P.  F.  Smith  281;  Acker  t'.  Phcenix,  4 
Paige  305;  Pinckard  v.  Pinckard,  23  Ala.  649;  Reed  v.  Vannors- 
dale,  2  Leigh,  569;  Mintum  v.  Seymour,  4  John?.  Ch.  498.] 

In  some  recent  cases,  there  appears  to  have  been  an  inclination  on 
the  part  of  some  judges,  to  hold  that  to  amount  to  a  declaration  of 
trust,  which,  according  to  the  ordinary  rules  of  construction  would 
amount  only  to  an  imperfect  assignment:  See  Richardson  v.  Rich- 
ardson, 3  L.  R.  Eq.  686;  Morgan  v.  Malleson,  10  L.  R.  Eq.  475. 
The  recent  decision,  however,  of  Sir  G.  Jessel,  M.  R.,  in  Richards 
V.  Delbridge,  18  L.  R.  Eq.  11,  [See  American  notes  to  this  case  in 
Brett's  Lead.  Cas.  in  Mod.  Eq.  (Text  Book  Series)  55.]  has  put  the 
law  upon  this  subject  on  a  very  satisfactory  footing.  In  that  case, 
J.  Delbridge,  who  was  possessed  of  leasehold  business  premises  and 
stock  in  trade,  shortly  before  his  death  purported  to  make  a  volun- 
tary gift  in  favour  of  his  grandson  E.  B.  Richards,  who  was  an  in- 
fant, and  assisted  him  in  his  business,  by  the  following  memorandum, 
signed  and  endorsed  on  the  lease:  "This  deed,  and  all  thereto  be- 
longing, I  give  to  E.  B.  Richards  from  this  time  forth,  Avith  all  the 
stock  in  trade,"  signed,  '"J.  Delbridge."  J.  Delbridge  delivered  the 
lease  to  the  mother  of  his  grandson.  It  was  held  by  Sir  G.  Jessel, 
M.  R.,  that  there  was  no  valid  declaration  of  trust  of  the  property 

in  favour  of  E.  B.  Richards.    "  A  man,"  said  his  Lordship," 
r  *  316  ]  may  transfer  his  property,  without  valuable  ^'  considera 

tion,  in  one  of  two   ways:  he  may  either  do  such  acts  as 
amount  in  law  to  a  conveyance  or  assignment  of  the  property,  and 
374 


ELLISON  V.  F.LLISOX.  *.j17 

thus  completely  divest  himself  of  the  lej^al  owoership,  in'  which 
case  the  person  who  by  those  acts  acquiies  the  propeity,  takes  it 
beneficially,  or  on  trust,  as  the  case  may  be;  or  tbe  legal  owner  of 
the  property  may,  by  one  or  other  of  the  modes  recofjjnized  as 
amoixnting  to  a  valid  declaration  of  trust,  constitute  himself  a  trus- 
tee, and,  -without  an  actual  transfer  of  the  legal  title,  may  so  deal 
with  the  property  as  to  deprive  himself  of  its  beneficial  ownership, 
and  declare  that  ho  will  hold  it  from  that  time  forward  on  trust  for 
the  other  person.  It^is  true  he  need  not  xisc  ths  irordH '' I  declare 
myself  a  trustee,^  hid  he  must  do  something  irhich  is  equivalent  to  it, 
and  use  expressions  u'liich  have  that  meaning ;  for,  however,  anx- 
ious the  Court  may  be  to  carry  out  a  man's  intention,  it  is  not  at 
liberty  to  construe  words  otherwise  than  according  to  their  ])roper 
meaning.  [Any  words  which  show  that  the  donee  was  intended  to 
take  beneficial  will  answer  the  purpose:  Day  v.  Roth,  18  N.  Y. 
458;  Piercer.  McKeehan,  3  W.  &  S.  283. 

"  There  must  in  general  be  sufficient  words  to  create  a  trust;  but 
no  particular  form  of  expression  is  necessary.  It  is  enough  if  there 
bo  a  complete  intention  expressed  with  sufficient  clearness."  Bis- 
pham's  Eq.  (4th.  Ed.)  See  05.] 

"  The  cases  in  which  the  question  has  arisen  are  nearly  all  cases 
in  which  a  man,  by  documents  insufficient  to  pass  a  legal  interest, 
has  said,  'I  give  or  grant  certain  property  to  A.  B.'  Thus  in  Morgan 
V.  Malleson  (10  L.  R.  Eq.  475),  the  words  were,  I  hereby  give  and 
make  over  to  Dr.  Morris  an  India  bond,'  and  in  Richardson  v.  Rich- 
ardson (3  L.  R.  Eq.  686),  the  words  were,  '  grant,  convey,  and  as- 
sign.' In  both  cases  the  judges  held  that  the  words  were  effectual 
declarations  of  trust.  In  the  former  case,  Lord  Romilly  considered 
that  the  words  were  the  same  as  these:  'I  undertake  to  hold  the 
bond  for  you,'  which  would  have  undoubtedly  amounted  to  a  declar- 
ation of  trust. 

"  The  true  distinction  appears  to  me  to  be  plain,  and  beyond  dis- 
pute: for  a  man,  to  make  himself  a  trustee,  there  must  be  an  ex- 
pression of  intention  to  become  a  trustee,  whereas  Avords  of  present 
gift  show  an  intention  to  give  over  property  to  another,  and  not  to 
retain  it  in  the  donor's  own  hands  for  any  purpose,  fiduciary  or 
otherwise.  In  Milroy  v.  Lord  (4  De  G.  F.  &  J.  264,  274),  Lord 
Justice  Turner,  after  referring  to  the  two  modes  of  making  a  volun- 
tary settlement  valid  and  effectual,  adds  these  words:  'The  cases, 
I  think,  go  furtlier,  to  this  extent,  that  if  the  settlement  is  intended 
to  be  effectuated  by  one  of  the  modes  to  which  I  have  referred,  the 
Court  will  not  give  effect  to  it  by  applying  another  of  those  modes. 
If  it  is  intended  to  take  effect  by  transfer,  the  Court  will  not  hold 
the  intended  transfer  to  operate  as  a  declaration  of  trust,  for  then 
every  imperfect  instrument  would  be  made  efl'ectual  by  being  con- 
verted into  a  perfect  trust." 

"  It  appears  to  me  thai  that  *  sentience  contains  the  whole  [  "^'  317  ] 
law  on  the  subject.     [Any  Avords  which  indicate  with  suf- 

375 


*  31T  ELLISON  V.  1  LLISON. 

ficient  certainly,  a  purpose  \o  create  a  trust,  will  be  effective  in  so 
doing:  Norman  v.  Burnett,  25  Miss.  183;  Brown  v.  Combs,  5  Dutch. 
30;  Fisher  v-  Fields,  10  Johns.  495;  Carpenter  v.  Cushraan,  105 
Mass.  419;  Porter  v.  The  Bank  of  Rutland,  19  Vt.  410.]  If  the 
decisions  of  Lord  Romilly  and  Vice-Chancellor  Wood  were  right, 
there  never  could  be  a  case  where  an  expression  of  a  present  gift 
would  not  amount  to  an  effectual  declaration  of  trust,  which  would 
be  carrying  the  docti-iue  on  that  subject  too  far.  It  appears  to  me 
that  those  cases  of  voluntaiy  gifts  should  not  be  confounded  with 
another  class  of  cases,  in  which  words  of  present  transfer  for  valuable 
consideration  [As  to  what  constitutes  a  valuable  consideration,  see 
Fownall  v.  Taylor,  10  Leigh,  183;  Haskill  ?;.  Freeman,  1  Wms.  Eq. 
34;  Baldwin  v.  Humphries,  44  N.  Y.  G09;  Wadsworth  v.  Wendell, 
5  Johns,  Ch.  224.]  are  held  to  be  evidence  of  a  contract  which  the 
Court  will  enforce.  Applying  that  reasoning  to  cases  of  this  kind, 
you  only  make  the  imperfect  instrument  evidence  of  a  contract  of  a 
voluntary  nature,  which  this  Court  will  not  enforce;  so  that,  follow- 
ing out  the  principle  even  of  those  cases,  you  come  to  the  same  con- 
clusion." See  also  Moore  v.  Moore,  18  L.  R.  Eq.  474,  482; 
Heariley  v.  Nicholson,  19  L.  E.  Eq.  233;  In  re  Breton's  Estate,  17 
Ch.  D.  410;  Hayes  v.  Alliance  Assurance  Co.,  8  L.  R.  I.  149.  Sed. 
vide  Baddeley  \.  Baddeley,  9  Ch.  D.  113;  Fox\.  Hawks,  13  Ch. 
D.  822.  ["Where  there  is  a  valuable  consideration,  and  a  trust 
is  intended  to  be  created,  formalities  are  of  minor  importance,  since 
if  the  transaction  cannot  take  effect  by  way  of  trust  executed,  it 
may  be  enforced  bv  a  Court  of  Equity  as  a  contract:"  Lewin  on 
Trusts,  Sec.  07.]      '  ..." 

Assignments  of  legal  or  equitable  choses  in  action  to  or  in  trust 
for  volunteers  valid.]  — Assignments  both,  of  equitable  and  legal 
choses  in  action,  although  nothing  (previous  to  the  acts  which  will 
be  hereafter  noticed)  passed  thereby  at  law,  have  been  held  binding 
in  favour  of  volunteers,  where  the  assignor  has  done  all  in  his  power 
to  make  the  assignment  complete.  [Howard  v.  Bank,  40  Vt.  597  ; 
Padfield  v.  Padfield,  08  111.  210;  Graham  r.  Lambert,  5  Hump.  595; 
Lans  V.  Ewing,  31  Mo.  75.]  Thus,  in  Sloane  v.  Cadogan,  Sugd. 
V.  &  P.,  App.  No.  xxiv.,  11th  ed.,  Mr.  W.  Cadogan,  having  an  equit- 
able reversionary  interest  in  a  fund  vested  in  trustees,  assigned  it 
to  other  trustees  upon  trust  for  volunteers.  It  was  contended  by 
Sir  Edioard  Sugden,  in  his  argument,  that,  in  order  to  constitue  an 
actual  settlement,  so  as  to  enable  a  volunteer  to  claim  the  benefit  of 
it,  it  is  absolutely  necessary  that  the  relation  of  trustee  and  cestui 
que  trust  should  be  established;  that  Mr.  W.  Cadogan  did  all  he 
could;  but  that  is  not  enough:  that  he  could  not  make  an  actual 
transfer;  that  the  trustees  in  whom  it  was  vested  would  not  have' 
been  authorised  in  transferring  it  of  their  own  authority  to  the 
trustees  of  Mr.  W.  Cadogan's  settlement.  "If,"  he  says,  "a  man  is 
seised  of  the  legal  estate,  and  agree  to  make  a  voluntary  settlement, 
it  cannot  be  enforced.  Can  it  make  any  difference  that  the  legal 
376 


ELLISON  V.  ELLISON.  *  319 

estate  happens  to  be  outstanding?  Certainly  not.  As  the  settle- 
ment, therefore,  "was  not  completely  perfected,  the  Earl  could  not  en- 
force it."  Sir  W.  Grant,  M.  11.,  however,  held,  thai  the  equitable  as- 
signment created  a  perfect  trust.  "The  Court,"  observed  his  Honor, 
"will  not  interfez'o  to  give  perfection  to  the  instrument,  but 
you  may  constitute  one  a  trustee  for  a  volunteer.  *  Here  [  '"  318  ] 
the  fund  was  vested  in  trustees :  Mr.  W.  Cadogan  had  an 
equitable  reversionary  interest  in  that  fund,  and  ho  assigned  it  to 
certain  trustees,  and  then  the  first  trustees  are  trustees  for  his  as- 
signs, and  they  may  come  here;  for  when  the  trust  is  created,  no 
consideration  is  essential,  and  the  Court  will  execute  it  though 
voluntary." 

In  Fortescue  v.  Barnett,  3  My.  &  K.  3f),  J.  B.  made  a  voluntary 
assignment  by  deed  of  a  policy  of  assurance  effected  upon  his  own 
life  and  upon  his  own  name  for  1000/.,  to  trustees,  upon  trust  for 
the  benefit  of  his  sister  and  her  children.  The  deed  was  delivered 
to  one  of  the  trustees,  and  the  grantor  kept  the  policy  in  his  own 
possession.  No  notice  of  the  assignment  icas  given  to  the  assur- 
ance office,  and  J.  B.  afterwards  surrendered,  for  a  valuable  con- 
sideration, the  policy  and  a  bonus  declared  iipon  it  to  the  assurance 
office.  A  bill  was  tiled  by  the  surviving  trustee  of  the  deed  against 
J.  B.  to  have  the  value  of  the  policy  replaced.  It  was  argued  by 
Mr.  Peniberton,  for  the  defendant,  upon  the  distinction  laid  down 
by  Lord  Eldon  in  the  principal  case,  between  an  actual  transfer 
and  a  mere  covenant  to  transfer  stock,  that  the  assignment  of 
stock  by  deed,  no  actual  transfer  of  the  stock  having  been  made,  and 
an  assignment  of  a  policy  of  assurance  by  deed,  the  policy  remain- 
ing in  the  hands  of  the  grantor,  stood  upon  exactly  the  same  foot- 
ing. But  Sir.  J.  Leach,  M.  R  ,  held,  that  J.  B.  was  bound  to  give 
security  to  the  amount  of  the  value  of  the  policy  assigned  by  the 
deed.  "In  the  case,"  observed  his  Honor,  "of  a  voluntary  assign- 
ment of  a  bond,  where  the  bond  is  not  delivered,  but  kept  in  the 
possession  of  the  assignor,  the  Court  would  undoubtedly,  in  the  ad- 
ministration of  the  assets  of  the  assignor,  consider  the  bond  as  a  debt, 
to  the  assignee.  There  is  a  plain  distinction  between  an  assignment 
of  stock,,  ichere  the  stock  }tas  not  been  transferred,  and  an  assign- 
ment of  a  bond.  In  the  former  case,  the  material  act  remains  to  be 
done  by  the  grantor,  and  nothing  is  in  fact  done  which  will  entitle 
the  assignee  to  the  aid  of  this  Court  until  the  stock  is  transferred  ; 
whereas  the  Court  will  admit  the  assignee  of  a  bond  as  a  creditor, 

"In  the  present  case,  the  gift  of  the  policy  appears  to  me  to  have 
been  perfectly  complete  without  delivery.  Nothing  remained  to  be 
done  by  the  grantor  ;  nor  could  he  have  done  what  he  afterwards 
did  to  defeat  his  own  grant,  if  the  trustees  had  given  notice  of  the 
assignment  to  the  assurance  office.  The  question  here  does  not 
turn  upon  any  distinction  between  a  legal  and  an  equitable  title, 
but  sinipljj  npon  ichether  any  act  remained  to  be  done  bij 
the  grantor,  which,  to  assist  a  volunteer,  this  *  Court  would  [  *  319  ] 

377 


*  320  ELLISOX  V.  ELLISON. 

not  compel  him  to  do.  I  am  of  opinion,  that  no  act  remained  to 
be  done  to  complete  the  title  of  the  trustees.  The  trustees  ought 
to  have  given  notice  of  the  assignment;  but  their  omission  to  give 
notice  cannot  affect  the  cestui  que  trust."  See,  also,  Godsal  v^ 
Webb,  2  Kee.  99;  Pearson  v.  The  Amicable  Assurance  Office,  27 
Beav.'229;  Pedder  v.  Mosely,  31  Beav.  159;  In  re  King,  14  Ch.  D. 
179;  and  the  remarks  of  Lord  Cottenham,  C,  in  Edtoards  v.  Jones, 

1  mV.  &  C.  238. 

Upon  the  authority  of  Sloane  v.  Cadogan  and  Fortescue  v.  Bar- 
nctt,  it  has  been  held,  that  the  assignment  of  a  debt  to  a  volunteer 
was  binding,  although  nothing  passed  at  law.   See  Blakely  v.  Brady, 

2  Dru.  &  Walsh,  311.     There  A.  made  a  voluntary  assignment  to 
B.  of  a  note  or  memorandum  in  writing,  being  the  acknowledgment 
of  a  sum  of  1,620Z.  then  due  to  him  from  K.,  and  all  interest  due, 
and  to  accrue  due,  upon  trust  to  pay  the  interest  thereof  unto  A., 
his  executors,  administrators,  and  assigns,  for  his  life,  and  a  period 
of  fourteen  months  afterwards,  and,  at  the  expiration  of  the  said 
fourteen  months,  after  making  certain  payments  therein  mentioned, 
as  to  the  residue,  in  trust  for  B.   absolutely.     The  deed  also  con- 
tained a  power  of  attorney  to  B.  to  recover  the  said  debt.     A.  soon 
afterwards  died,  without  having  made  any  will  or  other  disposition 
of  the  property.     The  administrator  of  A.  refused  to  allow  his  name 
to  be  used  to  enable  B.  to  recover  the  said  sum,  having  actually  him- 
self commenced  an  action  for  that  purpose.     Upon  a  bill  filed  by 
B.  to  restrain  proceedings  in  the  action,  and  to  carry  the  trusts  of 
the  deed  into  execution,  it  was  held  by  Lord  Plunkett,  that,  as  the 
transaction  between  A.  and  B.  was  complete,  the  deed,  though  vol- 
untarv,  should  be  carried  into  execution.      "It  is  asked,"  said  his 
Lordship,  "  why  does  the  plaintiff  come  into  this  Coiut,  if  the  as- 
signment is  imperfect  ?     The  answer  is  obvious  :  he  comes  here  be- 
cause the  property  is  in  the  defendant,  to  whom  the  ecclesiastical 
court  has  granted  administration,  and  he   is  an  administrator  in 
trust.     Now  you  may  constitute  a  trustee  for  a  volunteer  ;  and  the 
case  of  Sloane  v.  Cadogan  (Sugd.  V.  &P.  App.  xxiv.  11th  ed.)  is  di- 
rectly in  point  as  to  that.     The  only  diff'erence  is,  that  in  the  present 
case,  the  law  has  created  the  trust ;  and  in  Sloane  v.  Cadogan  the 
trust  was  created  by   the  act  of  the  donor.     See  also  Parnell  v. 
Hingston,  3  Sm.  &  G.  337;  Ga7inon  v.  White,  2  Ir.  Eq.  Rep.  207; 
Roberts  v.  Lloyd,  2  Beav.  370  :  sed  vide  Sewell  v.  Moxsy,  2  Sim.  N. 

S.  189." 

The  remarks  however  of  Lord  Langdale  m  Tlard  v.  Audland,  b 

Beav.  201,  seem  to  be  scarcely  consistent  with  the  cases  of 
[  *■  320  ]  Sloane  *  v.  Cadogan,  Fortescue  v.  Barnett,  and  Blakely  \. 

Brady,  for  there  his  Lordship  appears  to  be  of  opinion 
that  the  mere  voluntary  assignment  of  a  chose  in  action  is  not  bind- 
ing upon  the  ground  that  nothing  thereby  passes  at  law,  and  the 
transaction  is,  therefor^-,  incomplete.  This  also  seems  to  have  been 
the  opinion  of  Sir  L.  Shadwell,  V.-C,  in Beatson  v.  Beatson,  12  Sim. 
378 


ELLISON  V.  ELLISON.  *'  321 

291  and  HoUoicay  v.  Ileadington,  8  Sim.  024  ;  and  of  Sir  J.  Wig- 
ram,  V.-C,  iu  Meek  v.  Kettlewell,  464,  in  which  case  however  his 
Honor  observed,  that  ho  decided  only  that  a  voluntari/  assignment 
of  a  mere  expectancy,  not  communicated  to  those  in  whom  the  legal 
interest  was,  did  not  create  a  trust  in  equity,  within  the  principal 
of  the  cases  relied  upon  by  the  plaintiff.  This  decision,  on  appeal, 
was  affirmed  by  Lord  Lyndkurst;  1  Ph.  842.  [The  assignment  of 
a  chose  in  action  cannot  bo  enforced  by  a  mere  volunteer,  unless  the 
transaction  has  so  far  progr«3ssed  as  to  have  assumed  the  nature  of 
a  voluntary  trust.  If  there  is  an  executory  agreement  to  assign, 
that  agreement,  in  order  io  be  enforced,  must  be  supported  Vjy  a 
consideration  ;  Gibson,  C.  J.,  in  Kennedy's  Exrs.  v.  Ware  (1  Barr 
(Pa.),  450),  seems  to  think  that  all  assignments  were  in  their  na- 
ture executory,  and  should  be  supported  by  a  consideration.] 

The  leading  case,  however,  of  Keketvich  v.  Manning  (1  De  Gex, 
Mac.  &G.  170)  must  be  considered  in  effect,  though  perhaps  not  ex- 
pressly, as  overruling  Holloivay  v.  Headington  (8  Sim.  824),  Ward 
V.  Audland  (8  Beav.  201);  S.  C,  C.  P.  Coop.  Ptep.  140;  S  Beav. 
201,  and  Meek  v.  Kettlewell  (1  Hare,  404;  1  Ph.  342).  The  case  of 
Kekewich  v.  Manning  (1  De  Gex,  Mac.  &  G.  170)  is  as  follows  :  A 
lady  entitled  absolutely  to  the  reversion  in  stock,  sidiject  to  the  life 
interest  of  her  mofhcr  therein,  and  which  stock  was  standing  in  the 
joint  names  of  herself  and  her  mother,  assigned  her  interest  in 
this  stock  on  her  marriage,  to  trustees  in  trast  for  herself  for  life, 
remainder  to  her  husliand,  for  life,  and  after  their  decease,  in  trust 
for  a  niece,  and  for  the  issue  of  the  marriage  and  the  issue  of  the 
niece  according  to  appointment  ;  and  in  default  of  issue  of  the  mar- 
riage,in  trust  for  the  niece  of  the  settlor.  No  transfer  of  the  fund  took 
place,but  the  mother  had  notice  of  the  settlement.  There  was  no  issue 
of  the  marriage.  It  was  held  by  the  Lords  Justices  Knight-Bruce 
and  Lord  Cranworth,  that  even  if  the  settlement  were  voluntary  as 
regarded  the  niece  and  not  supported  by  the  marriage  consideration 
(which  point,  however,  the  Court  did  not  decide),  the  assignment 
being  complete  would  be  enforced  by  the  Court.  "  Suppose,"  said 
Lord  Justice  Knight  -  Bruce,  "  stock  or  money  to  be  legally  vested 
in  A.  as  trustee  for  B.  for  life  ;  and  subject  to  B.'s  life  interest,  for 
C.  absolutely  ;  surely  it  must  be  competent  to  C.  in  B.'s  lifetime, 
with  or  without  the  consent  of  A.,  to  make  an  effectual  gift  of  C.'s 
interest  to  D.  by  way  of  mere  bounty,  leaving  the  legal  interest  and 
legal  title  unchanged  and  untouched.  Surely  it  would  not  be  con- 
sistent with  natural  equity  or  with  reason  or  expediency 
to  hold  the  contrr.ry,  C.  *  being  sni  juris,  and  acting  freely,  [  *  321  ] 
fairly,  and  with  sufficient  advice  and  knowledge.  If  so, 
can  C.  do  this  better  or  more  effectually  than  by  executing  an  as- 
signment to  D.  ?  It  may  possibly  be  thought  necessary  to  the  com- 
plete validity  of  such  a  transaction,  that  notice  should  be  given  to 
A.:  upon  that  we  do  not  express  an  opinion. 

"Suppose  the  case  only  varied  by  the  fact  that  A.  and  C.  are  the 

370 


*  322  ELLISON  V.  ELLISON. 

trustees  jointly,  instead  of  A.  being  so  alone?  Does  that  make  any 
substantial  difference  as  to  C.'s  power,  the  mode  of  making  the  gift, 
or  the  effect  of  the  act,  C.  not  severing  nor  affecting  the  legal  joint 
tenancy  ?  G.  would  necessarily  have  notice.  Possibly  it  may  bo 
thought  material  that  B.  should  have  notice  likewise,  but  upon  that 
we  avoid  saying  anything,  beyond  referring  to  Meux  v.  Bell  (1  Hare, 
73),  and  to  Smith  v.  Smith,  mentioned  in  Meux  v.  BelV^  See  also 
the  elaborate  judgment  of  Sir  J.  Stetvart,  V.-C,  in  Voyle\.  Hughes, 
2  Sm.  &  Giff.  18;  Re  Waifs  Trusts,  2  De  G.  Jo.  &  Sm.  365;  Rich- 
ardson v.  Richardson,  3  L.  R.  Eq.  686. 

And  is  has  been  decided  that  it  is  not  essential  to  the  validity  of 
an  equitable  vohmtary  assignment  of  personal  property,  at  any  rate 
where  it  has  been  acted  upon  by  all  parties,  that  it  should  be  by 
deed.     Lambe  v.  Orton,  1  Drew.  &  Sm.  125. 

[No  written  instrument  is  necessary  to  make  a  valid  assignment  of 
a  chose  in  action ;  it  is  sufficient  if  there  is  a  verbal  declaration 
whereby  the  intention  to  part  with  the  ownership  of  the  chose  is 
properly  manifested:  Thompson  v.  Emery,  7  Foster,  269;  Caldwell 
V.  Hartupee,  20  P.  F.  Smith,  74;  Ford  v.  Stuart,  19  Johns.  342.] 

A  distinction  has  been  taken  in  recent  cases  by  Lord  Romilly,  M. 
E.,  to  this  effect,  that  although  it  is  clear  that  an  assignment  by 
deed  of  reversionary  personal  property  vested  in  trustees  in  favour 
of  volunteers  will  be  enforced  in  equity,  yet,  if,  although  property 
be  vested  in  trustees,  it  is  entirely  in  the  power  of  the  assignor,  so 
that  he  could  compel  a  transfer  from  them,  should  he  neglect  to  do 
so,  a  mere  assignment  will,  in  the  same  manner  as  if  the  property 
had  been  legally  vested  in  himself,  be  imperfect,  that  is  to  say,  not 
so  complete  as  he  could  have  made  it,  and  will  consequently  not  be 
enforced  by  a  Court  of  equity.  Thus  in  Bridge  v.  Bridge,  16  Beav. 
315,  where  it  appears  that  a  sum  of  stock  was  standing  in  the  name 
of  four  trustees  of  a  will  by  the  terms  of  which  they  were  to  apply 
the  dividends  for  the  benefit  of  the  plaintiff  until  he  was  twenty- 
five,  at  which  age  it  was  to  be  paid  over  to  him.  On  the  10th  of 
February,  1846,  the  plaintiff  attained  his  age  of  twenty-one.  On 
the  9th  of  April,  1847,  he  executed  a  voluntary  deed  by  which  he 
directed  (amongst  other  things),  that  the  personal  estate  to  which 
he  was  entitled  under  the  will,  should  thenceforth  be  considered  as 
vested  in  the  plaintiff  and  two  new  trustees,  upon  certain  trusts 
therein  mentioned.  The  deed  also  contained  a  covenant  for  further 
assurance.  No  transfer  of  the  stock  was  made  to  the  new 
[  *  322  ]  *  trustees.  The  plaintiff  having  filed  a  bill,  seeking  a 
declaration  that  the  settlement  of  1847  was  not  binding 
upon  him,  it  was  held  by  Sir  John  Romilly,  M.  R.,  that  as  there 
has  been  no  legal  transfer  made,  and  no  recognition  of  the  trust  by 
the  original  trustees,  there  was  no  complete  trust  constituted,  and 
the  plaintiff  was  therefore  entitled  to  a  transfer  of  the  stock.  "In 
my  view  of  this  particular  case,"  said  his  Honor,  "the  question 
must  bo  regarded  in  exactly  the  same  manner,  whether  the  plaintiff 
380 


ELLISON  V.  ELLISON.  *  323 

or  a  atrangor  had  beon  the  third  trustee.  This  being  bo,  thoro  being 
four  trustees  of  the  will  in  whom  the  legal  interest  was  vested,  and 
the  beneficial  owner  having  assinged  over  the  funds  to  these  per- 
sons, in  trust  for  certain  persons  as  volunteers,  no  transfer  is  made 
to  the  now  trustee  so  appointed,  wor  is  there  any  reason  as  in  Keke- 
tcich  V.  Manning  (1  Do  G.  Mac.  &  G.  176),  zrhi/  the  transfer  should 
not  have  been  made.  In  Kekexcich  v.  Manning,  the  original  trusts 
were  not  exhausted,  but  the  life-estate  of  the  mother  continued  in 
the  stock,  and  until  her  death  no  transfer  could  have  been  made.  The 
assignor  had  done  all  she  could  do.  That  is  not  so  in  this  case.  The 
trustees  of  the  deed  of  settlerrient  did  not  do  anything  inconsistent 
with  the  trusts  which  remained  to  be  performed  under  the  testator's 
will,  and  the  trustees  of  the  will  seem  not  to  have  been  advised  to 
resist  making  any  transfer  to  the  trustees  of  the  deed,  until  the 
settlor  had  attained  his  age  of  twenty-live  years."  So  likewise  in 
Beech  v.  Keep,  18  Beav.  285,  A.,  subject  to  the  life  interest  of  B., 
was  absolutely  entitled  to  a  sum  of  stock,  which  was  standing  in  the 
names  of  two  deceased  trustees,  to  the  survivor  of  whom  A.  was 
sole  executor.  Under  these  circumstances,  A.  by  deed  voluntarily 
assigned  all  her  interest  in  the  stock  to  B.,  "to  the  intent  that  he 
might  be  and  become  present  and  absolute  owner  thereof."  A.  hav- 
ing refused  to  execute  a  power  of  attorney  to  B.,  for  a  transfer  of 
the  stock,  it  was  held  by  Sir  John  Romilly,  M.  R.,  that  A.  could  not 
be  declared  by  the  Court  to  be  a  trustee  of  the  fund,  nor  compelled 
to  transfer  it.  His  Honor  distinguishing  the  case  from  Kekeivich 
V.  Manning  (1  De  G.  Mac.  &  G.  176),  considered  that  it  fell  within 
the  principle  of  his  own  decision  in  Bridge  v.  Bridge,  16  Beav. 
315).  "In  the  present  instance,"  said  his  Honor,  "it  is  obvious, 
there  was  no  outstanding  interest  except  the  plaintiff's,  and  the 
transfer  of  the  stock  ought  to  have  been  made,  if  both  jJarties  had  been 
ivilling  to  complete  tlie  transaction,  and  if  the  transfer  had  been  made 
the  x>l<^iT^^tiff^s  title  would  have  been  complete.  [A  promise  to  pay 
out  of  a  certain  fund  will  not  operate  as  an  assignment  of  that 
fund:  Ex  parte  Tremont  Nail  Co.,  16  Nat.  Bank  Reg.  460;  Ro- 
gers V.  Hosack,  18  Weml.  319.  But  an  order  payable  out  of  a  cer- 
tain fund  will  operate  as  an  assignment  of  that  kind:  Phoenix  Iron 
Co.  V.  Phila.,  2  W.  N.  C.  596;  Morton  v.  Naylor,  2  Hill,  585;  McLel- 
lan  V.  Walker,  26  Me.  114;  East  Lewisburg  Co.  v.  Marsh,  10  Norris 
(Pa.),  96;  Clark  r.  Mauran,  3  Paige,  373.  Likewise  a  parol  agree- 
ment to  transfer  stock  as  collateral  security,  followed  by  the  execu- 
tion of  a  letter  of  attorney  to  transfer  the  same  will  amount  to  an 
assignment  of  the  stock  in  equitv:  Lightner's  Appeal,  1  Norris 
(Pa.),  301;  Tafii'.  Bowker,  132  Mass.  277.]  The  argument  em 
ployed  by  the  plaintiff,  that  having  himself  the  life  estate,  no  trans- 
fer could  bo  made  without  his  consent,  clearly  does  not 
apply,  because  he  would  *  be  the  absolute  owner  if  this  [*  323  ] 
assignment  was  perfect,  and  it  was  throughout  his  ex- 
press desire  to  got  the  transfer  completed.     The  transfer  of  the 

381 


*  oL'o  .  ELLISON  V.  ELLISON. 

stock  is,  ia  fact,  what  the  defendant  has  refused  lo  make,  and  it  is 
thStt  transfer  which  the  plaintiff  has  all  along  been  trying  to  get, 
and  which  is  now  asked,  to  make  the  transaction  complete." 

Whether  notice  of  an  assignment  of  a  legal  or  equitable  chose  in 
action  is  essential  to  its  completion.^ — Notice  of  the  voluntary  assign- 
ment of  an  equitable  interest  or  of  a  chose  in  action,  to  the  trustees 
or  debtor,  according  to  the  recent  authorities,  is  not  essential  to  its 
validity,  but  if  the  trustees  or  debtor,  before  notice  of  the  deed, 
transferred  the  property  or  paid  the  debt,  the  donee  would  have  no 
remedy  against  them.  [A  voluntary  settlement  may  be  good  al- 
though the  grantor  retains  the  instrument,  the  rule  being  that  when 
such  a  settlement  is  fairly  made,  the  fact  that  the  grantor  retains 
possession  of  the  deed,  unaccompanied  by  other  circumstances  will 
not  effect  the  validity  of  the  settlement:  Adams  v.  Adams,  21 
Wallace,  185;  Land  v.  Ewing,  31  Mo.  75;  Souverbye  t\  Arden,  1 
Johns.  Ch.  250.]  Thus  in  Donaldson  v.  Donaldson,  Kay,  711,  the 
settlor  having  assigned  stock  standing  in  the  names  of  trustees,  to 
other  trustees  in  favour  of  volunteers,  it  was  held  by  Sir  TF.  Page 
Wood,  V.-C,  that  as  between  the  donees  under  the  assignment,  and 
the  representatives  of  the  assignor,  the  title  of  the  former  was  com- 
plete, although  no  notice  of  the  assignment  had  been  given  to  the 
trustees  iu  whose  names  the  stock  was  standing.  "  The  question," 
said  his  Honor,  "  is,  whether,  notice  not  having  been  given  to  the 
trustee,  the  gift  could  be  enforced.  As  to  that,  it  has  been  said  in 
some  cases  that  the  gift  is  complete  when  no  further  act  is  required 
to  be  done  by  the  donor  or  donee:  and  that  seems  to  imply  a  doubt, 
whether,  if  there  were  any  act  to  be  done  by  the  donee,  the  gift 
could  be  treated  as  complete.  But  the  assignment  has  completely 
passed  the  interest  of  the  donor.  It  is  true,  that,  if  no  notice  of  it 
were  given  to  the  trustees,  they  would  be  justified  in  transferring 
the  stock  to  the  original  cestui  que  trust  for  w^hom  they  held  it; 
and  if  they  did  so,  there  would  be  no  remedy  against  them;  and  it 
is  possible  that  the  donee  might  not  be  able  to  recover  the  stock; 
but  all  that  the  donee  has  to  do  is,  at  any  time  he  thinks  fit,  to  give 
notice  to  the  trustees  before  the  stock  is  transferred;  and  when  he 
has  given  such  notice  his  title  is  complete:  and  unless  the  donor 
or  his  executors  actually  obtain  possession  of  the  fund  the  donee 
does  not  require  the  aid  of  the  Court  against  them."  See  Roberts 
V.  Lloyd,  2  Beav.  376;  Re  Way's  Trusts,  2  De  G.  Jo.  &  Sm.  365. 
[In  order  to  protect  the  title  of  an  equitable  assignee  as  against  sub- 
sequent assignees,  notice  of  the  assignment  should  be  given.  This 
rule  seems  to  be  based  on  sound  reason  and  commends  itself  for 
adoption.  It  has  been  followed  in  many  decisions:  See  Murdoch 
V.  Finney,  21  Mo.  138;  Loomis  u  Loomis,  26  Vt.  198;  Vanbuskirk 
V.  The  Hartford  Ins.  Co.,  14  Conn.  145;  Woodbridge  v.  Perkins,  3 
Day,  364;  Mc Williams  v.  Webb,  32  Iowa,  577;  Coldfelte  v.  Cox, 
1  Sneed,  330." 

382 


P:LLIS()X  v.  ELLISON.  *  324 

'•  In  tbo  case  of  stock,  a  [jurchaser  Avho  i)erfects  his  rights  by  ob- 
taining a  transfer  on  the  books  of  a  corporation  will  bo  preferred 
to  a  prior  purchaser  who  has  bo(m  loss  diligent  or  fortunate: 
Shipam  v.  The  iEtna  Ins.  Co.,  20  Conn.  245;  Tho  People  v.  Elmore,  35 
Cal.  633;  Tho  N.  H.  &  N.  Y.  K.  R.  v.  Schuyler,  34  N.  Y.  30;  Pink- 
crton  V.  R.  R.  Co.,  42  N.  H.  424;  Bank  of  Commerce's  Appeal,  23 
P.  F.  Smith,  5'.J;  Sabin  v.  The  Bank  of  Woodstock,  21  Vt.  359. 
Notice  to  one  of  several  trustees  is  in  general  notice  to  all."] 

As  between  volunteers,  notice  to  the  trustees  or  debtor  of  an  as- 
signment of  a  chose  iu  action,  will  not  aflPect  priorities.  Justice  v. 
Wigmorc,  12  Ir.  Ch.  Rep.  2SU;  but  subsequent  assignees  for  value 
will  gain  priority  by  giving  notice  before  tho  first  assignee,  even  al- 
though ho  were  assignee  for  valuable  consideration.  []3etween  dif- 
ferent assignees,  the  one  who  lirst  gives  notice  to  the  debtor  will,  as 
a  general  rule,  have  the  prior  right.  This  i.^  in  accordance  with  tho 
rule  that  tho  assignee  must  do  every  thing  to  assert  the  ownership 
which  tho  nature  of  the  subject-matter  of  the  contract  will  allow: 
Spain  V.  Hamilton's  Admr.,  1  "Wallace,  G24;  Butler  v.  Plunkett,  1 
Johns.  &  H.  441;  Loveridge  v.  Cooper,  3  Russ.  1.]  See 
note  *  to  Rijall  v.  Roivles,  vol.  ii.,  post.  [  '•'  324  J 

The  legislature  has  recently  made  policies  of  life  as- 
surance (30  &  31  Vict.  c.  144),  policies  of  marine  assurance  (31  & 
32  Vict.  c.  80),  and  the  choses  in  action  of  bankrupts  (32  &  33  Vict, 
c.  71,  s.  22),  assignable  at  law.  See  note  to  Ryall  v.  Bowles,  vol. 
ii.,  where  these  acts  are  set  out.  [Equity  completely  recognize  ^  and 
enforces  tho  present  ownership  of  things  not  in  possession:  Garland 
V.  Harrington,  51  N.  H.  414;  Cutts  v.  Perkins,  12  Mass.  206; 
Hinkle  v.  Wanzer,  17  How.  353;  Brooks  v.  Hatch,  6  Leigh,  537. 
A  debt,  an  expectation  of  an  inheritance,  a  mere  chance  of  acquiring 
an  estate  may  be  assigned  in  equity,  and  the  modern  tendency  of 
courts  of  law  is  towards  ado[>ting  the  doctrine  of  courts  of  equity 
upon  these  subjects:  Low  v.  Pew,  108  M?»ss.  347;  Leslie  v.  Guthrie, 
1  Bing.  (N.  C.)  697.] 

By  the  Judicature  Act,  1873  (30  &  37  Vict.  c.  66),  any  absolute 
assignment  by  writing  under  the  hand  of  the  assignor  (not  pur 
porting  to  be  by  way  of  charge  only)  of  any  debt  or  other  legal 
chose  in  action,  uf  which  express  notice  in  writing  shall  have  been 
given  to  the  debtor,  trustee,  or  other  person  from  whom  tho  assignor 
would  have  been  entitled  to  receive  or  claim  such  debt  or  chose  in 
action,  shall  bo  and  be  deemed  to  have  been  effectual  in  law  (sub- 
ject to  all  equities  which  would  have  been  entitled  to  priority  over 
the  right  of  the  assignee  if  this  Act  had  not  passed),  to  pass  and 
transfer  the  legal  right  to  such  debt  or  chose  in  action  from  the 
date  of  such  notice,  and  all  legal  and  other  remedies  for  the  same, 
and  the  power  to  give  a  good  discharge  for  the  same,  without  the 
concurrence  of  tho  assignor."  Sect.  25,  sub-sect.  6.  See  Trower's 
Prevalence  of  Equity,  pp.  45 — 53. 

If  an  accruing  debt  arising  out  of  a  contract  be  assigned,  it  will 

3S3 


^-  325  ELLISON  V.  ELLISON. 

satisfy  the  provisions  of  sub-sect.  6  of  sect.  6  of  the  Act  of  1873, 
though  not  due  at  the  time  of  the  assignment  (Br ice  v.  Bannister, 
3  Q.  B.  D.  569,  575;  Buck  v.  Robson,  3  Q.  B.  D.  686,  689),  nor 
will  it  be  necessary  to  give  notice  of  the  assignment  to  the  debtor, 
until  after  the  death  of  the  assignor.  See  Walker  v.  Bradford  Old 
Bank,  12  Q.  B.  D.  511.  There,  by  a  deed  of  assignment,  all  moneys 
then  or  thereafter  to  be  standing  to  the  credit  of  the  assignor  at  a 
bank  were  assigned  to  a  trustee  on  trust  for  the  assignor  for  his 
life,  and  after  his  death  on  other  trusts.  At  the  date  of  the  assign- 
ment the  assignor's  balance  at  the  bank  was  ASl,  at  his  death  it 
was  217Z.  Notice  of  the  assignment  was  not  given  to  the  Bank 
until  after  the  assignor's  death.  In  an  action  by  the  trustee  against 
the  bank  to  recover  the  balance  of  217/.,  it  was  held  oy  the  Court  of 
Queen's  Bench,  that  the  bank  being  a  stranger  to  the  assignment, 
could  not  set  up  the  defence  that  it  was  voluntary,  and  therefore  in- 
valid in  equity;  that  the  balance  at  the  time  of  the  assignor's  death 
was  a  debt  or  legal  chose  in  action  within  the  meaning  of  sect.  25, 
sub-sect.  6,  of  the  Judicature  Act,  1873,  that  notice  after  the  death 
of  the  assignor  was  sufficient;  and  that  the  plaintiff  was  entitled  to 
recover. 

In  Lee  v.  Magrath,  10  L.  R.  Ir.  45,  the  payee  of  a  promissory 
note  not  negotiable  and  not  then  payable,  indorsed  it  as 
[  *  325  ]  follows : — *  "  I  indorse  the  within  promissory  note  for  100/. 
to  my  sister  L.,"  and  delivered  over  the  note  to  L.  There 
was  no  consideration  for  the  indorsement  and  delivery;  but  it  was 
found  as  a  matter  of  fact  that  such  indorsement  and  delivery  were 
made  by  the  payee  with  the  intention  of  vesting  in  L.  the 
beneficial  interest  in  the  money  represented  by  the  note.  The  payee 
died  before  the  note  fell  due,  and  bequeathed  to  one  of  the  makers 
of  the  note  all  the  moneys  she  should  die  possessed  of  or  entitled 
to,  and  appointed  him  executor.  After  the  death  of  the  payee,  and 
before  action,  express  notice  in  writing  of  the  indorsement  was 
given  to  the  makers.  It  was  held  by  the  Common  Pleas  Division 
in  Ireland,  that  the  indorsement  and  delivery  constituted  a  valid 
and  eflFectual  gift  of  this  debt,  and  that  L.,  as  assignee  of  the  debt, 
could  maintain  an  action  on  it  against  the  makers. 

Transfer  of  a  mere  Equitable  Estate  in  Land  in  favour  of  Volun- 
teers, luhen  valid.] — It  has  been  held  by  Lord  Romilly,  M.  R.,  that 
the  transfer  of  an  equitable  estate  in  real  property  to  volunteers  was 
invalid.  Bridge  v.  Bridge,  16  Beav.  315,  327,  328;  but  Lord  St. 
Leonards,  with  reference  to  this  decision,  says,  it  "seems  open  to 
reconsideration."  Sugd.  V.  &  P.  719,  14th  ed.;  and  see  Gilbert  v. 
Overton,  2  Hem.  &  Mill.  117:  where  Sir  W.  Page  Wood,  Y.-C,  ob- 
serves, 'T  do  not  wish  to  say  more  as  to  Bridge  v.  Bridge  than  this :  that 
the  points  there  dealt  with  will  require  much  consideration.  A  man 
who  conveys  his  equitable  interest  may  well  be  considered  to  do  all 
that  can  be  required,  and  it  would  be  a  great  extension  of  the  estab- 
384 


ELLISON  V.  ELLISON.  *  320 

lished  doctrine  on  these  subjects  to  hold  that  if  a  legal  estate  in 
discoveredjjperhaps  many  years  afterwards,  to  have  been  outstanding 
at  the  date  of  a  voluntary  settlement,  the  settlement  itself  is  to  bo 
deprived  of  effect.  Where  a  settlor  by  a  voluntary  instrument  cor 
veys  all  his  interest,  it  may  well  bo  hold  that  if  that  interest  proves 
to  be  merely  equitable,  the  assignee  becomes  entitled  to  claim  a  con- 
veyance of  the  legal  estate  from  the  person  in  whom  it  luay  bo 
vested." 

With  great  deference,  however,  to  the  opinion  of  Lord  St.  Ijion- 
ards,  it  seems  that  if  the  Courts  act  by  analogy  to  their  decisions  in 
other  cases,  they  would  very  properly  hold  that  where  a  person  who 
either  has,  in  himself  or  in  trustees  from  whom  he  can  call  for  a 
conveyance,  the  legal  estate  of  real  property;  if  he  conveys  only  an 
equitable  estate  to  or  upon  trust  for  volunteers,  the  conveyance, 
being  imperfect,  cannot  bo  enforced  by  the  volunteers.  AVhere,  how- 
evei*,  the  legal  estate  is  outstanding  in  trustees,  and  the  settlor 
cannot  call  ui)on  them  to  convey  it  to  him,  or  as  he  may 
*  direct,  a  voluntary  conveyance  or  settlement  to  or  in  [  *  )>20  ] 
favour  of  volunteers  will  be  valid. 

Complete  trust  not  revocable  by  settlor  zvhen.^ — Where  a  complete 
trust,  either  by  actual  transfer  on  assignment  or  declaration  of  trust 
has  been  created,  it  cannot  in  the  absence  of  a  potver  resei'ved  for 
that  purpose  to  the  settlor  be  revoked  by  him  by  a  subsequent  volun- 
tary assignment  {Nexvton  v.  AskeiL\  11  Beav.  145;  Rijcroft  v.  Christy, 
3  Beav.  238),  [Tho  settlor  of  a  voluntary  trust  sometimes  seeks  the 
aid  of  a  court  of  equity  to  have  the  settlement  revoked.  Where  there 
appears  an  intention  to  make  an  irrevocable  gift  and  there  is  a  suffi- 
cient motive  for  making  such  a  gift  the  settlement  will  not  bo  dis- 
turbed, but  if  the  deliberate  intent  does  not  appear  and  no  motive 
exists  the  absence  of  a  power  of  revocation  is  primCi  facie  evidence 
of  mistake:  See  Miskev's  Appeal,  107  Pa.  St.  628;  Garnsley  v. 
Mundy,  24  N.  J.  Eq.  243^  Russell's  Appeal,  25  P.  F.  Smith,  269.] 
and  it  is  immaterial  that  the  legal  estate  by  accident  or  breach  of 
trust  gets  back  into  tho  hands  of  tho  settlor,  as  he  would  simply 
take  it  is  a  trustee.  See  Smith  v.  Lyne,  2  Y,  &  C.  C.  C  345;  Pater- 
son  V.  Murjyhy,  11  Hare,  88. 

But  the  settlor  who  creates  a  voluntary  trust  for  others,  subject  to 
legacies  or  debts,  may  clearly  defeat  such  trust  by  leaving  legacies 
or  creating  debts  to  a  greater  value  than  the  sul:)ject- matter  of  the 
trust.  See  Markicell  v.  Markwell,  32  Beav.  1 2 :  there  A.  B.  by  deed 
voluntarily  settled  some  property  on  trust  for  l)imself  for  life,:  and 
after  his  decease  upon  trust  to  pay  all  the  debts  owing  by  >him,  and 
any  legacies  or  sums  of  money  not  exceeding  400Z.  which  he  by  will 
or  writing  should  direct,  and  subject  thereto  in  trust  for  his  son 
William.  Afterwards,  in  order  to  defeat  the  settlement,  he  gave 
voluntary  bonds  to  the  extent  of  3,500/.  in  favour  of  other  relatives. 

2o   WHITE   ON    EQUITY.  385 


*  327  ELLISON  V.  ELLISON. 

It  was  held  by  Lord  Rojnilly,  M.  E.,  that  the  bonds  were  efifectual, 
•and  created  valid  debts  payable  out  of  the  trust  property. 

Where  an  instrument  creating  a  valid  and  comiAete  voluntary 
trust  is  duly  sealed  and  delivered  the  obligation  is  complete,  and  the 
detention  thereof  by  the  settlor  does  not  render  it  inoperative:  Doe 
d,  GarnonsY.  Knight,  5  B.  &  C.  671  ;  Exfon  v.  Scott,  6  Sim.  31  ; 
Hall  V.  Palmer,  3  Hare,  532-  Fletcher  v.  Fletcher,  4  Hare,  67;  Re 
Wai/s  Trusts,  2  De  G.  Jo.  &  S.  365;  Bonfield  v.  Hassell,  32  Beav. 
217.  Nor  if  it  be  lost  can  it  be  presumed  that  he  destroyed,  or  re- 
served a  power  of  revocation  in  the  lost  instrument  :  In  re  Booker, 
W.  N.  1886,  Feb.,  6  p.  18. 

"VVe  shall  see  hereafter  that  a  voluntary  settlement  may  be  defeated 
in  favour  of  purchasers  under  Stat.  27  Eliz.  c.  4,  and  in  favour  of 
creditors  by  Stat.  13  Eliz.  c.  5. 

Agreeinent  or  covenant  to  settle  in  favour  of  volunteers  not  en- 
forced.']— The  Courts  of  equity,  as  is  laid  down  in  the  principal 
case,  will  not  carry  into  effect  a  mere  voluntary  agreement,  contract, 
or  covenant  to  transfer  property,  even  though  it  be  under  seal,  and, 
therefore,  on  the  face  thereof  carrying  a  consideration  such  as  would 
support  an  action  at  law  {Cotteen  v.  Missing,  1  Mad.  176;  Colyear 
V.  Mulgrave,  2  Kee.  81;  Jeffreys  v.  Jeffreys,  Cr.  &  Ph.  138;  Dening 
V.  Ware,  22  Beav.  184  ;  Cheale  v.  Kericood  6  W.  K., 
[  *327  ]  *  M.  K,  494;  Tatham  v.  Vernon,  29  Beav.  604);  or  to 
forgive  a  debt  (Strong  v.  Bird,  18  L.  K  Eq.  315). 
[Swan  V.  Frick,  34  Md.  143;  Cressraan's  Appeal,  6  Wright  (Pa.), 
147;  Henderson  v.  Henderson,  21  Mo.  379;  Gilchrist  v.  Stevenson, 
9  Barb.  9;  Pinkard-y.  Pinkard,  2  Ala.  124;  Lantermannr.  Abernathy, 
47  111.  437;  Read  v.  Robinson,  6  W.  &  S.  338;  Bank  v.  May,  3  A. 
K.  Marsh,  435;  Minturn  v.  Seymour,  4  Johns.  Ch.  498.]  In  Con- 
ingham  v.  Plunketf,  2  Y.  &  C.  C.  C.  245,  a  person  who  was  entitled 
to  stock,  standing  in  the  names  of  two  trustees,  gave  instructions  to 
his  attorney  to  prepare  a  settlement  of  it  for  the  benefit  of  A.,  B., 
and  C,  and  to  procure  from  the  trustees  a  transfer  for  the  purposes 
of  settlement.  The  settlement  was^prepared  and  a  power  of  attorney 
for  the  transfer  of  the  stock  executed  by  both  the  trustees;  but  th« 
intended  settlor  died  without  having  seen  the  settlement,  and  before 
the  stock  was  actually  transferred.  Sir.  J.  L.  Knight  Bruce,  V.-C, 
held,  that  no  trust  of  the  stock  was  constituted  for  A.,  B..  and  C. 
[So  long  as  the  matter  rests  in  intention  and  the  transfer  is  incom- 
plete there  is  a  locus  ijoenit entire .  See  Appeal  of  Waynesburg 
College,  1  Amerman  Pa.,  130;  Trough's  Estate,  25  P.  F.  Sm.  115.] 
In  Marler  v.  Tommas,  17  L.  R.  Eq.  8,  a  trustee  executed  a  settle- 
ment declaring  the  trusts  of  a  sum  of  2000?.,  which  was  recited  to 
have  been  paid  to  him  by  the  settlor — a  married  woman.  The  re- 
cital as  to  the  payment  of  the  2000Z.  was  untrue,  and  the  trustee 
executed  the  deed  upon  the  faith  of  a  promise  that  the  settlor  would 
pay  him  the  2000Z.  out  of  her  separate  estate.  The  2000Z.  was  never 
386 


ELLISON  V.  ELLISON.  *  328 

paid.  It  was  held  by  Sir  G.  Jessell,  M.  R.,  that  neither  the  trustee 
of  the  settlement,  nor  a  vohinteer  under  it  conld  enforce  the  promise. 
"It  is  said,"  observed  his  Honor,  "that  the  lady  promised  the  trustee 
to  pay  him  the  2000/.  out  of  her  separate  estate,  and  the  question  is, 
can  a  bare  volunteer  enforce  this  voluntary  promise  against  the 
assets  of  the  per.sou  who  made  the  promise?  I  am  of  opitiitni  that 
there  is  no  rule  of  equity  which  enables  a  volunteer  to  do  this.  " 
See  also  Pownall  v.  Anderson,  2  Jur.  N.  S.  857. 

Where,  however,  a  person  entered  into  a  voluntary  covenant  to 
surrender  copyholds,  and  in  the  the  meanichile  to  stand  possessed  of 
them  for  trustees  for  the  volunteers,  though  the  covenant  to  sur- 
render per  se  cannot  be  enforced,  yet  a  valid  trust  is  constituted  for 
the  volunteers:  Steel  v.  Waller,  28  Beav.  460. 

It  has  at  length  been  settled  that  a  merely  meritorious  eovslder- 
atton,  as  a  provision  for  a  wife  or  children,  after  marriage,  will  not 
be  a  sufHcient  inducement  for  a  Court  of  equity  to  lend  its  aid  in 
enforcing  a  voluntary  agreement  or  covenant,  or  in  giving  eflect  to 
an  imperfect  gift  as  against  the  settlor  himself:  AntrobasY.  Smith, 
12  Ves.  39,46:  HoUoway  v.  Headington,  8  Sim.  325;  Wolrond\. 
}Voh-ond,  Johns.  25. 

AVith  regard  to  persons  claiming  under  the  settlor,  it  seems  that 
formerly  if  a  party  after  he  entered  into  an  agreement  or  covenant 
to  settle  property  in  favour  of  volunteers  supported  by  a  meritorious 
consideration  only,  subsequently  executed  a  voluntary 
settlement,  *or  died  without  having  during  his  life  made  [•*  328  ] 
a  valid  disposition  thereof,  the  parties  intei'ested  under 
the  agreement  might  enforce  it  in  equity  as  against  the  volunteers 
under  the  settlement  (Bolton  v.  Bolton,  3  Swanst,  414n. ),  or  against 
a  devisee  or  legatee  (ib.),  heir-at-law,  or  next-of-kin  (Watts  v. 
Bullas,  1  P.  "Wms.  60;  Goring  v.  iVas/i,  3  At k.  186;  Bodgersy.  Mar- 
shall, 17  Ves.  294),  of  the  settlor,  provided  that  these  persons  could 
not  equally  claim  a  meritorious  consideration,  as,  if  for  instance, 
they  were  the  children  of  the  party  entering  into  the  agreement, 
and  in  such  case  the  Court  would  not  interfere  against  them  unless 
it  were  found  upon  a  reference  that  they  were  provided  for  in  some 
other  way.  Goring  v.  Nash,  3  Atk.  386,  192;  Rodgersv.  Marshall, 
17  Ves.  294. 

It  seems,  however,  to  be  now  clearly  settled,  that  a  voluntary 
agreement  or  covenant,  though  under  seal,  cannot  upon  the  ground 
of  a  merely  meritoi'ious  consideration  be  enforced  as  against  volun- 
teers claiming  under  the  settlor,  even  although  they  may  not  bo 
otherwise  provided  for.  See  Jefferys  v.  Jefferys,  Cr.  &  Ph.  138, 
and  Dillon  v.  Coppin,  4  My.  &  Cr.  647,  distinctly  OA'erruling  the 
decision  of  Sir  E.  Sugden,  L.  C,  in  Ellis  v.  Nimmo,  1  L.  k  G.  t. 
Sugd.  333.  See  also  Evelyn  v.  Temj^ler,  2  Bro.  C.  C.  148;  Antra- 
bus  V.  Smith,  12  Ves.  39;  Holloicay  v.  Headington,  8  Sim.  324; 
Joyce  V.  Hutton,  11  Ir.  Ch.  Eep.  123. 

It  has,  however,  always  been  held  that  parties  claiming  as  volun- 

387 


*  329  ELLISON  V.  ELLISON. 

teers  on  a  merely  meritorions  consideration,  could  not  enforce  an 
agreement  or  covenant  to  settle  as  against  creditors  of  a  purchaser 
from  the  settlor.  Finch  v.  Earl  of  Winchelsea,  1  P.  Wms.  277; 
Bolton  V.  Bolton,  3  Swanst,  414  n. ;  Garrard  v.  Lord  Lauderdale,  2 
K  &  M.  453,  454. 

A  party  entitled  to  property  tinder  an  imperfect  voluntary  settle- 
ment, may  by  the  outlay  of  money  upon  the  faith  of  the  gift  with 
the  knowledge  and  concurrence  of  the  settlor,  acquire  the  right  to 
be  considered  no  longer  a  volunteer  but  a  purchaser,  and  in  that 
capacity  he  will  be  able  to  call  for  a  conveyance  of  the  legal  estate. 
See  Diilivyn  v.  Llewellyn,  4  De  G.  F.  &  J.  517. 

As  a  rule  contracts  for  value  enforced  only  upon  the  ajjplication 
of  a  party  thereto,  and  if  so  enforced  carried  out  in  its  entirety  even 
i)i  favour  of  volunteers.^ — We  have  already  seen  that  the  court  will 
not  at  the  instance  of  a  volunteer  enforce  an  incomplete  trust,  or  an 
agreement  or  covenant  to  create  one. 

It  is  clear,  moreover,  as  a  general  rule  that  the  court  will  not, 
upon  the  application  of  a  stranger  to  an  executory  co7itract,  as  dis- 
tinguished from  an  executed  trust,  although  taking  as  a 
[  *  329]  volunteer  a  *benefit  thereunder,  decree  specific  perform- 
ance of  such  contract  in  his  favour.  See  Colyear  v. 
Countess  of  Mulgrave,  2  Keen,  81,  98.  [A  contract  is  executory 
when  the  thing  agreed  has  not  been  done:  Fletcher  v.  Peck,  6 
Cranch,"87;  and  executed  when  the  thing  has  been  done:  Robin- 
Bon  V.  Robinson,  44  Ala.  227;  Frazer  v.  Robinson,  42  Miss.  121.] 
There  a  father  having  four  natural  daughters  and  a  legitimate  son, 
entered  into  an  agreement  with  his  son,  evidenced  by  certain  deeds, 
whereby  the  father  covenanted  to  transfer  the  sum  of  20,000?.  to  a 
trustee,  for  the  benefit  of  his  four  natural  daughters,  and  the  son 
covenanted  to  pay  the  debts  of  his  father.  The  son  paid  some  of 
the  father's  dabts,  and  before  the  covenant  on  the  part  of  the  father 
was  performed,  died,  having  by  his  will  given  the  whole  of  his 
property  to  his  father,  who  became  the  son's  personal  representa- 
tive. Upon  a  bill  being  filed  by  one  of  the  natural  daughters,  pray- 
ing to  have  the  agreement  executed  against  the  estates  of  the  father 
and  the  son,  a  demurrer  thereto  was  allowed  by  Lord  Langdale,  M. 
R.  "I  apprehend,"  said  his  Lordship,  "that  when  two  persons,  for 
valuable  consideration  between  themselves,  covenant  to  do  some 
act  for  the  benefit  of  a  mere  stranger,  that  stranger  has  not  a  right 
to  enforce  the  covenant  against  the  two,  although  each  one  might 
as  against  the  other.  The  misfortune  for  the  natural  daughters 
was  that  the  son  died  before  the  executory  agreements  were  carried 
into  effect."  See  also  Ex  jjarte  Williams,  Buck,  13;  Ex  2^cirte 
Peele,  6  Ves.  602.  604;  In  re  D'Angibau,  15  Ch.  D.  242;  Hill  v. 
Gomme,  1  Beav.  540;  3  Sra.  &  G.  141;  Cramer  v.  Moore,  3  Sm.  & 
G.  141;  Joyce  v.  ILdton,  11  Ir.  Ch.  Rep.  123;  and  see  also  Croio 
V.  Rogers,  1  Str.  592;  Berkeley  v.  Hardy,  5  B.  &  C.  355;  Lord 
388 


KLLISON  y.  KLLISON.  *  o>0 

SouUiampton  \.  Brown,  0  B. 'ct  C.  718  •,   Chester  field  ^  dtc,    Colliery 
V.  Hawkins,  8  H.  &  C.  077. 

Upon  the  saiiio  priuci})lo  where  A.  entered  into  a  contract  with  B. 
to  give  lip  to  him  an  estate  which  had  l)een  the  subject  of  much  liti- 
gation, in  consideration  of  B.  undertaking  lo  pay  to  1  ho  solicitor  his 
costs  with  interest,  it  was  held  that  the  soHcitor  (not  being  a  party 
to  the  contract,  and  being  so  far  as  it  was  concerned  a  volunteer  only), 
was  unable  to  onfoi'co  such  contract:  Moss  v.  Bainbri'jge,  IS  Beav. 
478,  482;  S.  C.  on  appeal,  0  Do  G.  Mac.  &  G.  292. 

There  are,  however,  some  exceptions  to  this  rule. 

1st.  The  court  woiild  enforce  a  contract  in  a  marriage  settlement 
at  the  instance  of  the  children  of  the  man'iage,  but  this  is  an  excep- 
tion from  the  rule  in  favour  of  those  who  are  specially  objects  of  the 
settlement:  In  re  I/xlngibaa,  15  Ch.  D.  242;  see  also  Frebble  v.  Bog- 
hurst,  1  Swanst.  809,  580)  and  who  are  termed  by  a  very  learned 
judge,  "  not  only  objects  of,  but  quasi  parties  to  it,"  per  Lord  Cot- 
tenham,  C,  in  Hill  v.  Gomme,  5  My.  &  C.  254. 

[The  equity  to  a  settlement  is  the  privilege  of  the  wife  and  can  be 
enforced  only  by  her  or  it  may  be  waived  by  her.  The  children  can 
not  assert  the  right  themselves  but  when  it  has  been  made  it  will 
enure  to  the  benefit  of  the  children :  Bispham's  Eq.,  Sec.  113;  Perry 
on  Trusts,  Sec.  027.  • 

As  to  the  parties  against  whom  the  wife's  equity  to  a  settlement 
will  be  enforced,  see  Moore  v.  Moore,  14  B.  Mon.  259;  Page  v.  Estes, 
19  Pick.  209;  Udall  v.  Kenney,  8  Cowan,  591;  Bennett  v.  Dilling- 
ham, 2  Dana,  430;  Phillips  v.  H^ssell,  10  Humph.  197;  Durr  v- 
Bowyer,  2  McCord  Ch.  368.] 

2nd.  A  covenant  by  a  widow  on  *  her  second  marriage  to  f  *  380]  • 
convey  property  for  the  benefit  of  her  children  by  a  former 
viarriage,  if  entered  into  in  pursuance  of  an  agreement  between  her 
and  her  intended  husband,  will  be  enforced  at  the  suit  of  those  chil- 
dren: Gale  V.  Gale,  6  Ch.  D.  144.  See  also  Neicstead  v.  Searles,  1 
Atk.  205;  West.  Ch.  287;  It  hell  y.  Beane,  1  Yes.  215;  Chapman  v. 
Emery,  Cowp.  278,  280;  Clarke  \.  Wright,  0  H.  &  N.  849:  4  Cruise's 
Dig.  p.  443,  4th  ed.  Sed  vide  Price  v.  Jenkins,  4Ch.  D.  483;  S.  C. 
reversed  on  another  point,  5  Ch.  D.  019. 

Whether  the  case  of  children  by  a  former  wife  provided  for  by  a 
husband  on  his  second  marriage  comes  within  the  same  consideration 
has  been  doubted.  See  Dart.  V.  &  P.  5th  ed.  894;  and  Price  v. 
Jenkins,  4  Ch.  D.  483,  in  which  case  the  question  arose  whether  the 
interest  taken  by  the  son  was  void  against  a  subsequent  jnirchaser 
under  27  Eliz.  c.  4. 

3rd.  It  seems  that  where  A.  as  trustee  for  B.  has  contracted  with 
D.  for  valuable  consideration  moving  from  B.  to  D.  to  receive  a  sum 
of  money  from  D.  in  trust  for  B.,  the  latter  can  proceed  against  D. 
on  a  contract  in  A.'s  name  upon  the  usual  indemnity  to  him,  or  even 
in  his  own  name.  See  Touche  v.  Metropolitan  Railway  Warehous- 
ing Co.,  G  L.  11.  Ch.  App.  071,  077.     See  also  Hook  v.  Kinnear,  3 

389 


*331  ELLISON  t'.  ELLISON. 

Swanst.  417  n.     And  see  and  consider'  Re  Emxtress  Engineering  Co., 
29  AV.  R.  342. 

4th.  AVhere  a  contract  has  been  entered  into  between  two  parties, 
under  which  the  status  of  a  third  person  not  a  party  to  the  contract 
may  be  altered,  it  may  give  him  a  right  to  enforce  it.  As  for  in- 
stance if  A.  agreed  with  B.  that  in  consideration  of  his  allowing  his 
son  D.  to  live  with  him,  he  would  maintain,  educate,  and  leave  him 
certain  property;  if  then  the  agreement  were  acted  upon,  so  as  to 
have  altered  the  status  of  D.,  and  that  by  the  act  of  A.  the  latter 
might  have  been  precluded  from  disputing  with  D.  his  liability  to 
l^erform  his  part  of  the  agreement,  that  being  a  new  equity  though 
arising  out  of  the  agreement:  See  Hill  v.  Gomme,  5  My  &  C.  250, 
255;  S.  C.  1  Beav.  540;  in  which  case,  however,  it  was  held  that  as 
the  contract  had  been  abandoned  by  the  CQntracting  parties,  so  that 
the  status  of  the  child  had  not  been  altered,  it  could  not  be  enforced 
by  the  child.     See  also  Lyons  v.  Blenkin,  Jac.  245. 

5th.  When  persons  who  are  within  the  consideration  of  the  mar- 
riage take  only  on  terms  which  admit  to  a  participation  with  others 
who  would  not  otherwise  be  within  the  consideration,  then,  not  the 
matrimonial  consideration,  but  the  consideration  of  the  mutual  con- 
tract extends  to  and  comprehends  them:  Mackie  v.  Hcrbertson,  9 
App.  Cas.  303.  • 

But  although  collaterals  may  not  be  able  to  enforce  the 
[  *  331  ]  trusts  *  of  a  marriage  settlement  when  executory,  the  trus- 
tees of  a  fund  in  the  case  of  an  eocectded  trust  cannot  part 
with  the  fund  as  against  such  collaterals,  tbough  volunteers  at  the 
instance  of  the  husband  and  wife,  and  although  all  other  trusts  may 
have  fafled.  See  Paul  v.  Paul,  19  Ch.  D.  47,  48.  There,  by  mar- 
riage settlement,  money  in  the  funds  was  settled  upon  the  husband 
and  wife  successively  for  life,  afterwards  upon  the  children  of  the 
marriage,  and  if  there  were  no  children,  then  if  the  wife  should  die 
in  the  lifetime  of  her  husband  as  she  should  by  will  appoint,'and  in 
default  of  appointment  in  trust  for  the  neoct  of  kin  exclusive  of  the 
husband,  but  if  the  husband  should  die  in  the  lifetime  of  his  wife, 
then  in  default  of  children  for  her  absolutely.  There  were  no  chil- 
dren of  the  marriage,  and  it  was  admitted  that  there  was  no  possibility 
of  there  being  any.  Upon  the  application  of  the  wife,  and  with  the 
approbation  of  the  husband,  that  the  corpus  of  the  trust  funds  should 
be  applied  in  payment  of  the  debts  of  the  wife,  it  was  held  by  Fry, 
J.,  and  afterwards  by  the  Court  of  Appeal  (20  Ch.  D.  742),  revers- 
ing the  decision  of  Malins,  V.-C.  (reported  15  Ch.  D.  580),  that 
althovigh  the  next  of  kin  were  mere  volunteers,  and  not  within  the 
marriage  consideration,  the  trusts  in  their  favour  could  not  be  re- 
voked. See  also  Heatley  v.  Thomas,  15  Ves.  590;  WolJaston  v.  Tribe, 
9  L.  R.  Eq.  44.  And  it  is  clear  that  if  a  trust  is  completely  declared 
the  Court  will  enforce  it  on  behalf  of  a  volunteer  though  not  a  party 
to  the  deed  creating  the  trust:  In  re  Flavell,  Murray  v.  Flavell,  25 
Ch.  D.  89,  102. 
390 


ELLISON'  V.  LLLISOX.  *  332 

Where,  however,  a  party  to  the  agreement  or  covenant,  bein^  a 
person  from  whom  a  consideration  moves,  applies  to  tlio  Court  to 
carry  it  into  effect, the  Court,which  will  not  ordinarily  decree  a  partial 
performance,  will  carry  it  into  effect  in  its  entirety,  oven  in  favour 
of  volunteers.  Thus,  in  Darenjjort  v.  Biskopj),  2  Y.  &  C.  C.  C.  451 ; 
in  a  maiTJago  settlement  which  comprised  only  the  property  of  the 
wife,  it  was  agreed  between  the  intended  husband  and  wife,  and 
each  of  them  covenanted  with  the  trustees,  that  any  property  to 
which  the  wife  might  become  entitled  during  the  coverture,  should 
be  conveyed  to  such  uses  as  she  should  by  deed  or  will  appoint,  and 
in  default  of  appointment,  to  the  use  of  herself  for  life,  remainder 
to  the  use  of  her  husband  for  life,  remainder  to  the  use  of  th(<  wife's 
children,  and  in  default  of  such  children  to  theit.se  of  Iter  neice  Mary 
. Lucas  and  her  heirs.  After  the  death  of  the  wife  without  issue 
and  without  having  exercised  her  power  of  appointment,  the  hus-* 
band  tiled  a  bill  against  her  heir-at-law  praying  that  some 
real  estate  to  which  she  had  become  entitled  *  during  her  [  *332  J 
life-time,  might  be  conveyed  to  his  iises  of  the  settlement. 
It  was  conteniled  on  behalf  of  the  heirs-at-lawof  the  wife,  that  as 
the  neice,  Mary  Lucas,  was  merely  a  volunteer,  the  decree  for  spe- 
citic  performance  should  be  confined  to  the  life  estate  of  the  hus- 
band, and  not  extended  to  the  heirs  of  Mary  Lucas,  who  was  then 
dead.  It  was  held,'  however,  by  Knight-Bruce,  V.-C,  that  the 
covenant  in  the  marriage  settlement  ought  to  be  earned  out  in  toto, 
and  that,  therefore,  not  only  the  limitation  to  the  husband  for  life, 
bat  also  the  ultimate  limitation  to  Mary  Lucas  (though  a  stranger 
to  the  settlement),  and  her  heirs,  must  take  effect.  "The  surviving 
trustee  of  the  settlement,  or  his  representative,"  said  his  Honor, 
"may  be  thought  to  be  a  trustee  of  the  covenant  both  of  the  hus- 
band and  of  the  heirs  of  Mary  Lucas.  If,  without  giving  the  hus- 
band, to  the  extent  of  his  life  interest,  the  benefit  of  the  covenant 
in  this  suit,  I  were  to  allow  the  covenant  to  be  made  the  suliject  of 
an  action,  or  of  actions,  I  conceive  the  damages  recoverable  would 
be  upon  an  estimate  of  the  value  of  his  interest  and  theirs  also. 
Could  it  be  right  to  give  him  relief  in  equity,  by  way  of  specific 
performance,  as  to  his  life  interest,  which  I  think  the  Conn  bound 
to  do,  and  leave  an  action  or  actions  to  be  brought  as  to  the  inter- 
est only  of  Miss  Lucas'  heirs  ?  It  seems  to  me  not.  These  con- 
siderations, however,  which  appear  to  deserve  attention,  are  not  all. 
I  apprehend  that  if  two  parties,  in  contemplation  of  a  marriage 
intended,  and  afterwards  had  between  them,  or  for  any  other  con- 
sideration between  themselves,  coming  under  the  descrijition  of 
"yaZita^fe,"  have  entered  into  a  contract  together,  in  which  one  of 
the  stipulations  made  by  them  is  a  stipulation  solely  and  merely  for 
the  benefit  of  a  third  person,  that  third  person  being  even  a 
stranger  in  blood  to  each,  a  stranger  to  the  contract,  and  a  person 
from  whom  not  any  valuable  or  meritorious  consideration  moves,  or 
has  moved,  or  is  to  move,  it  cannot,  generally  speaking,  be  compe- 

391 


*  333  ELLISON  V.  ELLISO-V. 

tent  to  one  party  to  the  contract,  or  to  those  representing  that  party 
in  estate,  to  say  to  the  other  party  to  the  contract,  'whatever  may 
be  your  wishes,  whether  you  assent,  or  dissent,  that  stipulation  shall 
go  for  nothing,  or  shall  not  have  effect  given  to  it."  The  two  parties 
to  the  contract  having  made  the  stipulation  with  each  other,  mutual 
assent  must  generally  be  requisite  to  dissolve  that  which  by  mutual 
assent  was  created.  With  the  question  between  them  the  gratuitous- 
ness of  the  provision  towards  the  stranger,  as  far  as  the  stranger  is 
concerned,  seems  generally  to  have  little  or  nothing  to  do.     In   the 

present  case  the  settlement  was  the  joint  act  of  the  hus- 
[  *  333  ]  band  and  wife.      '•''  The  covenant  is   between  themselves 

as  well  as  with  the  trustees:  and  not  only  does  it  not  ap- 
pear that  either  he  or  she  ever  dissented  from  the  full  performance 
of  the  covenant,  or  objected  to  it,  but  the  husband's  bill  in  the  cause, 
and  the  argument  of  his  counsel  at  the  bar,  demand  its  unrestricted 
fulfilment."  On  appeal  that  decision  was  affirmed  by  Lord  Lynd- 
hurst,  L.  C.  See  S.  C,  1  Ph.  698.  [The  wife's  equity  to  a  settle- 
ment is  believed  to  exist  in  all  of  the  United  States  except  New 
Hampshire  and  North  Carolina,  it  has  also  been  recognized  in  the 
Federal  courts:  Andrew  i?.  Jones,  10  Ala.  401;  Barron  v.  Barron, 
24  Vt.  375;  Chase  v.  Palmer,  25  Me.  342;  Ward  v.  Amory,  1  Cur- 
tis, 432;  Gardner  v.  Hooper,  3  Gray,  398;  Wiles  v.  Wiles,  3  Md.  1; 
Wilks  V.  Fitzpatrick,  1  Humph.  54;  James  u.'Gibbs,  P.  &  H.  277; 
Lassiter  y.  Dawsou,  2  Dev.  E(].  383;  Bees  v.  Waters,  9  Watts,  94; 
Lay  V.  Brown,  13  B,  Mon.  295.] 

Effect  of  Bonds,  and  covenants  for  payment  of  money  to  volun- 
teers].— Where  a  voluntary  instrument,  although  effecting  no  trans- 
fer of  property,  creates  a  valid  legal  obligation,  equity  will  give 
effect  to  it.  Thus,  where  a  person  executes  a  bond  (Hall  v.  Palmer, 
3  Hare,  532),  or  even  a  promissory  note  (i)a?-t;son  v.  .K'earfoji,  3  Sm.  & 
Giff.  186;  Arthur  v.  Clarkson,  35  Beav.  458,  in  favour  of  a  volun- 
teer, he  may  prove  the  debt  against  the  assets  of  the  debtor;  but 
it  will  be  postponed  in  equity  to  debts  by  simple  contract:  Rams- 
den  V.  Jackson,  1  Atk.  294.  And  see  Watson  v.  Parker,  6  Beav, 
283;  Dening  v.  Ware,  22  Beav.  184;  Hales  v.  Cox,  32  Beav.  118. 
A  voluntary  bond,  however,  has  been  preferred  to  interest  upon 
debts  not  by  law  carrying  interest  payable  under  the  46th  order  of 
August,  1841;  (Consol.  Ord.  xlii.,  10)  Garrard  v.  Loi^d  Dinorben,  5 
Hare,  213;)  and  also  to  legacies,  even  those  that  are  specific :  Patch 
V.  Shore,  2  Dr.  &  Sm.  589.  And  where  it  was  doubtful  whether  a 
bond  were  voluntary  or  for  valuable  consideration,  an  issue  has 
been  directed:  Hejnvorth  v.  Heslop,  6  Hare,  561.  [A  court  of 
equity  will  not  relieve  against  a  bond  on  the  mere  ground  that  it  is 
without  consideration  yet,  on  the  other  hand,  it  will  not  interfere 
with  its  special  remedies  such  as  to  aid  a  defective  conveyance  of 
land,  or  decree  specific  performance  of  a  covenant  to  convey,  where 
there  was  no  consideration  in  fact:  Leake  on  Contracts,  147, 
392 


ELLISON  V.  ELLISON.  *  334 

008,   609;    Koffor   v.    Grayson,    70   Va.  519;    DownH  v.  Porter,  5-4 
Texas,  59;   Northern  Kunsas  Town  Co.  v.  Oswald,  18  Kansas,  330.] 

But  an  assignee  for  value  of  an  equitable  interest  in  money  pay- 
able under  a  voluntary  bond  has  been  beld  entitled  to  rank  as  a 
specialty  creditor  for  value  against  these  assets  of  the  obligor: 
Payne  v.  Mortimer,  4  Do  G.  k  Jo.  447;   1  Gilf.  118. 

Where  a  person  without  consideration  covenants  to  j>ay  a  sum  of 
money,  if  the  covenant  is  complete,  and  the  Court  is  not  called  upon 
to  do  any  act  to  make  it  perfect,  it  will  give  efl'ect  to  a  trust  de- 
clared upon  the  covenant.  Thus,  in  Cloiujh  v.  Lambert,  10  Sim. 
174,  where  a  person,  by  a  voluntary  ileed,  for  himself,  his  heirs, 
executors,  and  administrators,  covenanted  to  pay  an  annuity  to 
trustees,  upon  trust  for  his  wife  for  her  life.  Sir  Lancelot  Shad- 
well,  V.-C,  was  of  opinion  that  the  covenant  might  be  enforced 
by  the  wife  against  the  executors  of  her  husband,  though  not  as 
against  his  creditors,  and  that  the  mere  intervention  of  a  trustee 
made  no  diflPerence. 

And  in  the  event  of  the  trustees  refusing  or  declining  to  sue  on 
the  covenant,  equity  will  assist  the  cestui  quo  trust,  by  enabling  bim 
to  use  the  names  of  his  trustees  and  the  deed  at  law:  Fletcher  \. 
v.  Fletcher,  4  Hare,  07.  And  where  thei'e  is  no  reason 
*  for  trying  the  case  at  law,  the  decree  in  equity  ought  to  [  *  334  ] 
be  for  the  payment  of  the  money  due  upon  the  admission 
of  the  assets  of  the  covenantor:  Fletcher  v.  Llefcher,  4  Hare  07. 
See  also  Williamson  v.  Codringfon,  1  Ves.  511;  Watson  v.  Parker, 
6  Beav.  283;  Lomas  v.  Wright,  2  My.  &  K.  709;  Alexander  \. 
Brame,  19  Beav.  430;  Holes  v.  Cox,  32  Beav.  118;  Bon  field  v.  Has- 
sell,  lb.  217;  and  the  observations,  of  Sir  Johii  Romilly,  M.  R.,  in 
Bridge  v.  Bridge,  10  Beav.  321. 

And  where  a  person  has  entered  into  a  covenant  for  further  as- 
surance in  a  volunta^-y  settlement  the  court  will,  in  a  suit  to  ad- 
minister the  assets  of  the  settlor,  enfcirce  the  covenant  against  them 
without  recourse  to  a  court  of  law,  because  all  the  covenantee  re- 
quii'ed  was  damages,  and  those  damages  the  Court  of  Chancery 
could  in  such  a  case  estimate  and  give  better  than  a  court  of  law: 
Cox  V.  Barnard,  8  Hare,  310;  see  however  Hervey  v.  Audland,  14 
Sim.  531;  Ward  v.  Audland,  10  M.  &  W.  802;  Aulton  v.  Atkins,  18 
C.  B.  249;  Patch  v.  Share,  2  Dr.  &  Sm.  589;  11  W.  R.  (V.  C.  K.) 
142. 

Voluntary  deeds,  when  void  against  subsequent  purcliasers.l — A 
voluntary  conveyance  of  real  estate,  whether  freehold,  copyhold,  or 
leasehold,  unless  it  be  in  favonr  oi  a  chanty  { Attorney-General  \.  The 
Corporation  of  Newcastle,  5  Beav.  307, 12  C.  ct  F.  402;  Doe  d.  Tunstill 
V.  Bottriell,  5  B.  &  Ad.  131),  and  not  merely  conveyances  executed 
with  express  intent  to  defraud  (Burrel's  Case,  0  Rep,  72;  Goocli's 
Case,  5  16.  00;  Standenw.  Bullock,  Moore,  005,  015;  Bridgm.  23), 
will,  under   27   Eliz.  c.  4,  bo  held  fraudulent  and  void,  as   against 

393 


*  335  ELLISON  V    ELLISON. 

subsequent  purchasers,  legal  and  equitable  (Burton  v.  Vanheythuy- 
sen,  11  Hare,  126),  for  a  valuable  consideration  from  the  settlor,  in- 
cluding mortgagees,  both  legal  [Dophin  v.  Ayhvard,  4  L.  li.  Ho. 
Lo.  486;  Chapman  v.  Eviery,  Cowp.  280;  White  \.  Hussey,  Free. 
Ch.  13;  Lister  v.  Turner,  5  Hare,  281;  Lloyd  v.  Attwood,  3  De  G. 
&  Jo.  614);  equitable  (Lloyd  v.  Attwood,  3  De  G.  &  Jo.  614),  and 
by  deposit  of  title  deeds  (Ede  v.  Knoivles,  2  Y.  &  C.  C.  C.  172; 
Lister  V.  Turner,  5  Hare,  281),  sed  vide  contra  at  law  (Kerrison  v. 
Dorrien,  9  Bing.  76;  Holford  v.  Holford,  1  Ch.  Ca.  216),  and  les- 
sees (Doe  d.  LeiCis  v.  Hopkins,  9  East,  70,  cited;  Goodright  v.  ilfoses, 
2  Wm.  Black,  1022),  except  lessees  without  fine  or  rent  (Upton  v. 
Basset,  Cro.  Eliz.  444)  also  against  a  grantee  in  consideration  of 
the  release  of  a  right  (Hill  v.  Bishop  of  Exeter,  2  Taunt.  69),  and 
parties  taking  under  settlements  for  valuable  consideration  (Wat- 
kins  V.  Steevens,  Nels.  160;  Doe  v.  Lewis,  11  C.  B.  1035),  whether 
they  were  rhade  in  consideration  of  an  intended  marriage, 
[  *  335  ]  (Douglasse  v.  TFaad,  1  Ch.  Ca.  79),  ^  or  being  post-nuptial, 
in  consideration  of  ante -nuptial  articles  Kirk  v.  Clark, 
Free.  Ch.  275),  or  of  some  consideration  such  as  an  additional 
portion:  Broivny.  Jones,  1  Atk.  190.  [Deeds  which  are  made  upon 
"  good"  consideration  only,  are  considered  as  merely  voluntary  and 
are  frequently  set  aside  in  avor  of  creditors  and  bond  fide  pur- 
chasers, 2  Bl.  Com.  297. 

In  each  of  the  States  there  is  in  practical  use  but  one  form  of 
deed,  requiring,  if  between  strangers  a  valuable  consideration: 
Ford  17.  Ellingwood,  3  Met.  (Ky.)  359;  Blackerby  i?.  Holton,  5 
Dana,  520;  Schnell  v.  Nell,  17  Ind.  29;  Kirkpatrick  v.  Taylor,  43 
111.  207;  Coggeshall  v.  Coggeshall,  2  Strob.  51.] 

A  purchase  will  be  valid  under  27  Eliz.  c  4,  even  ivith  notice  of  a 
voluntary  settlement,  though  it  is  founded  on  a  meritorious  consider- 
ation as  being  a  fair  provision  for  a  wife  and  children  ;  and  the  set- 
tlor will  not  be  restrained  from  selling  the  settled  estates  ;  but,  if 
the  trust  is  complete,  the  volunteers  will  be  entitled  to  the  execu- 
tion of  it  until  the  sale.  See  Pulvertoft  v.  Pulvertoft,  18  Ves.  84, 
91,  93  ;  Buckle  v.  Mitchell,  18  Ves.  100;  Metcalfe  v.  Pulvertoft,  1  V. 
&B.  180;  Willatts  v.  Busby,  5  Beav.  193;  StackjMolev.  StackjDoole, 
.4  D.  &  W.  320;  Clarke  v.  Wright,  6  H.  &  N.  849.  And  as  this  title 
is  complete  against  all  except  purchasers  for  value,  they  can  set  aside 
prior  voidable  conveyances  :  Dickinson  v.  Burrell,  35  Beav.  257;  1 
L.  K  Eq.  337. 

A  mortgage  executed  without  agreement  and  without  knowledge 
of  the  mortgagee  to  secure  sums  antecedently  lent  without  any 
agreement  for  security,  is  voluntary,  and  is  fraudulent  under  27 
Eliz.  c.  4  against  a  subsequent  bona  fide  mortgagee  :  Cracknall  v. 
Janson,  11  Ch.  D.  1. 

A  voluntary  conveyance,  however,  will  be  defeated  by  a  convey- 
ance  or  settlement  for  value  to  the  extent  only  necessary  to  give 
effect  to  the  conveyance  or  settlement  for  value  :  Croker  v:  Martin, 
394 


ELLISON  V.  ELLISON.  *  330 

I  Bligh,  N.  S.,  573;  1  D.  &  C.  15.  See  also  Dolphin  v.  Aylward, 
4  L.  K.  Ho.  Lo.  480. 

But  it  cannot  bo  defoatod  by  a  subsequent  judgment  creditor,  avLo 
is  not  a  purchaser  and  who  can  only  have  resort  against  such  inter- 
est, if  any,  as  remained  in  the  settlor  by  virtue  of,  or  unatfected  by, 
the  voluntary  settlement  :  lb.  See  also  JSeacan  v.  Lord  Oxford,  0 
De  G.  Mac.  &  G.  507. 

The  husband  of  a  volunteer  cannot  be  treated  on  his  marriage  as 
a  purchaser  under  the  statute  ( Collins  v.  Burton,  5  Jur.  N.  S.  952), 
reversed  on  other  points  {lb.  1113  ;  4  De  G.  &  J.  012;  Doe  v.  Leicis; 

II  C.  B.  1039).  Nor  is  a  person  claiming  under  a  postnuptial  set- 
tlement, unless  it  were  made  in  pursuance  of  articles  entered  into 
before  marriage  (Martin  v.  Seamore,  1  Ch.  Ca.  170),  and  also  pro- 
vided that  these  articles  are  of  a  binding  character  :  Doe  v.  lioice,  4 
Bing.  N.  C.  737.     And  see  Trowell  v.  Shenton,  8  Ch.  D.  318. 

A  bona  lido  settlement,  although  voluntary,  cannot  be  defeated  by 
the  conveyance  for  value  of  the  heir  or  devisee  of  the  settlor.  See 
Leicis  v.  Rees,  3  K.  &  J.  132;  Parker  v.  Carter,  4  Hare,  409;  Doe  v. 
Lewis,  11  C.  B.  1035;  Doe  d.  Newman  v.  Knsham,  17  Q.  B.  721; 
overruling  Jones,  Lessee  of  Moffett,  v.  Whittaker,  Longfield 
*  &  Townsend's  Ir.  Exch.  Rep.  141.  [  *  330  ] 

But  where  the  sale  is  effected  by  a  mortgagee  under  a 
power  contained  in  a  mortgage  deed  prior  in  date  to  the  voluntary 
settlement,  it  will  not  have  the  same  effect  as  a  sale  by  the  voluntary 
settlor  himself,  and  the  volunteer  has  been  held  entitled  to  the  pro- 
ceeds of  the  sale  after  the  deduction  of  what  was  due  to  the  mort- 
gagee :  In  re  Walhampton  Estate,  26  Ch.  D.  391. 

A  deed,  apparently  voluntary,  may  be  supported  by  collateral  evi- 
dence, showing  it  to  be  a  contract  for  value  :  Pott  v.  Todhunter,  2 
Coll.  76.  And  see  Ford  v.  Stuart,  15  Beav.  493;  Harman  v.  Rich- 
ards, 10  Hare,  81 ;  Kelson  v.  Kelson,  10  Hare,  385;  Toirnend  v.  To- 
ker,  1  L.  R.  Ch.  App.  446;  Gale  v.  Williamson,  8  M.  &  W.  405; 
Mullins  V.  Guilfoyle,  2  L.  R.  Ir.  95.  [Parol  evidence  is  admissible 
to  show  the  real  consideration  of  a  deed  or  contract  i  lioiagh  different 
from  that  expressed:  Holmes'  Appeal,  79  Pa.  St.  2(9:  Hebbard  v. 
Haugbian,  70  N.  Y.  54;  Burnham  v.  Dorr,  72  Me.  198;  Eaton  v. 
Eaton,  35  N.  J.  L.  290.J 

And  the  onus  of  proving  some  valuable  consideration  falls  upon 
the  person  sustaining  the  deed  :  Kelson  v.  Kelson,  10  Hare,  388;  17 
Jur.  129. 

A  conveyance,  moreover,  which  may  in  its  creation,  being  volun- 
tary, bo  fraudulent  and  void  as  against  a  purchaser,  may  yet  become 
valid  by  matter  ex  post  facto  as  Avhen  the  volunteer  has  before  the 
subsequent  sale  conveyed  the  settled  property  in  consideration  of 
marriage,  or  for  other  valuable  ponsideration  :  I'rodgers  v.  Langham, 
Sid.  133;  Smartle  v.  Williams,  S  Lev.  387;  Neu-jJorVs  Case,  Skinn. 
428;  Kirk  v.  t7a?-A-,  Prec.  Ch.  275;  Broicn  v.  Carter,  5  Yes.  863; 
Parr  v.  Eliason,  1  East,  95;  George  v.  Milbanke,  9  Yes.  190,  192; 

395 


*  337  ELLISON  V.  ELLISON. 

Payne  v.  Mortimer,  1  GifF.  118;  4  De  G,  &  Jo.  447;  Meggison  v. 
Foster,  2  Y.  &  C,  C.  C.  336;  Guardian  Assurance  Company  v.  Vis- 
count Avonmore,  6  I.  R.  Eq.  391. 

The  settlor  himself  cannot  come  into  a  Court  of  equity  to  enforce 
the  specific  performance  of  a  contract  for  the  sale  of  the  estate  en- 
tered into  by  him  after  the  settlement  (Smith  v.  Garland,  2  Mer. 
123;  Johnson  v.  Legard,  T.  &  E.  294;  Clarke  v.  Willott,  7  L.  R. 
Exch.  313);  except  as  against  a  purchaser  willing  to  complete  upon 
a  good  title  being  shown  (Peter  \.  Nicolls,  11  L.  R.  Eq.  391);  and 
where  a  purchaser  has  paid  a  deposit  on  the  purchase  money,  he 
can,  on  refusing  to  accept  the  title,  sue  for  the  deposit :  Clarke  v. 
Willott,  7  L.  R.  Exch.  313. 

A  purchaser,  however,  from  the  settlor  can  enforce  specific  per- 
formance of  the  contract :  Currie  v.  Nind,  1  My.  &  C.  17 ;  Baking 
V.  Whimper,  2(3  Beav.  568;  Rosher  v.  Williams,  20  L.  R.  Eq.  210; 
Trowell  v.  Shenton,  8  Ch.  D.  318. 

A  subsequent  purchaser  can  recover  the  land  against  volunteers 
by  action  as  he  formerly  could  by  ejectment  (Doe  v.  James,  16  East, 
212),  and  he  may  also  do  so  to  complete  his  purchase  or 
[  *  337  ]  mortgage  and  set  aside  the  *  voluntary  deed,  and  to  such 
action  the  volunteer  would  be  a  proper  party  (Toicnend 
V.  Toker,  1  L.  R.  Ch.  App.  446).  A  purchaser  or  mortgagee,  how- 
ever, has  been  refused  relief  in  a  suit  instituted  by  himself  and 
the  settlor  as  co-plaintiffs  :  Bill  v.  Cureton,  2  My.  &  K.  503.  It 
has,  moreover,  never  been  held  that  a  purchaser  for  value  could  take 
proceedings  in  equity  to  have  a  voluntary  deed  delivered  up  to  be 
cancelled  :  per  Lord  Romilly,  M.R.,  in  De  Hoghton  v.  Money,  1  L. 
R  Eq.  159. 

A  volunteer  in  his  defence  to  proceedings  taken  against  him  by 
an  alleged  purchaser  for  value  may  show  inadequacy  of  consider- 
ation as  amounting  to  evidence  that  it  was  not  a  bona  fide  convey- 
ance, but  colourable  to  get  rid  of  the  settlement:  Doe  v.  James,  16 
East,  213.  The  declarations,  moreover,  of  the  mortgagor  having 
parted  with  his  interest  by  the  settlement,  are  not  admissible  after 
his  death  to  prove  payment  of  the  mortgage  money  against  parties 
claiming  under  the  settlement;  Doe  v.  Webber,  1  Aid.  &  Ell.  733; 
and  see  Lalor  v.  Lalor,  4  L.  R.  Ir.  351;  lb.  678. 

Where  a  voluntary  settlement  of  land  is  avoided  by  a  subsequent 
sale  by  the  settlor  for  valuable  consideration,  the  volunteers  have 
no  equity  against  the  purchase-money  payable  to  the  settlor  (Pul- 
vertoft  V.  Pulvertoft,  16  Ves.  84^  Daking  v.  Whimper,  26  Beav.  568; 
Toicnend  v.  Toker,  1  L.  R.  Ch.  App.  446,  460;  overruling  Leach  v. 
Dene,  1  L.  R.  Ch.  App.  461,  n. ) ;  nor  are  they  entitled  to  it  when 
the  voluntary  settlement  has  been  revoked  by  the  settlor  under  a 
power  therein  contained:  Evelyn  v.  Templar,  2  Bro.  C.  C.  148. 

With  regard  to  Avhat  will  be  considered  a  voluntary  settlement 
may  be  mentioned,  a  conveyance  in  trust  to  sell  and   pay  creditors 
not  parties  or  privy  to  the  deed  ( Wallivyn  v.  Coutts,  3  Mer.  707, 
396 


KLLISOX  V.  ELLISON.  *  008 

and  cases  cited  ante,  p.  303).  A  post  nujAial  ficAtlement  upon  wife, 
hnsband,  or  family  [Evelyn  v.  Templar,  2  Bro.  C.  C.  148;  Doe  v. 
Rae,  G  Sco.  525;  Cuirrie  v.  Nind,  1  My.  &  Cr.  17;  Doe  v.  Bottriell, 
5  B.  &  Ad.  1'31),  iiuloss  it  bo  made  in  pursuanceof  a  bindinj^  ante- 
nuptial agreement  {Griffin  v.  Stanhope,  Cro.  Jac.  454;  Randall  v. 
Morgan,  12  Ves.  74;  Ex  parte  Hall,  1  V.  &  B.  112;  Jiatfershee  v. 
Farrimjton,  1  Swanst,  KKJ),  will  be  voluntary.  And  it  will  also  be 
so  if  made  in  pursuance  of  a  mere  parol  agreement  (Sjinrrjeon  v. 
Collier,  1  Ed  55;  or  if  in  the  case  of  an  agreement  in  writing,  en- 
tered into  by  an  infant  before  marriage,  a  setth^ment  executed  sub- 
sequently, after  he  came  of  age,  cannot  be  considered  as  a  ratifica- 
tion of  the  agreement,  by  reason  of  there  being  noreforence  therein 
to  the  agreeinont,  and  the  property  being  settled  in  a  different  way: 
Trowellw.  Shenfon,  S  Ch.  D.  318. 

*A  postnuptial  settlement,  however,  between  a  husband  [  *  338  ] 
and  wife,  is  for  value  if  there  is  a  bargain  that  either  one 
or  the  other  should  give  up  something.  [Marriage  is  a  valuable 
consideration,  therefore  executory  agreement,  made  in  contempla- 
tion of  marriage,  will  be  enforced  if  the  marriage  actually  takes 
place:  Gough  v.  Crane,  3  Md.  Ch.  119;  Crane  v.  Gough,  4  Md.  316; 
Duval  V.  Getting,  Gill,  38;  Hale  v.  Lamb,  2  Ed.  271.]  And  it  has 
been  settled  that  if  husband  and  wife,  each  of  them  having  interests, 
no  matter  how  much,  or  of  what  degree,  or  of  what  quality,  come  to 
an  agreement  which  is  afterwards  embodied  in  a  settlement,  that  is 
a  bargain  between  husband  and  wife  which  is  not  a  transaction 
without  valuable  consideration,  andconsequently  is  not  void  against 
a  subsequent  purchaser  or  mortgagee.  HeeBallv.  Burn  ford,  Free. 
Ch.  113:  Clerk  v.  Nettleship,  2  Lev.  148;  Broicn  v.  Jones,  1  Atk. 
190;  Stileman  v.  Ashdown,  2  Atk.  479;  Ramsden  v.  Hijlfon,  2  Ves. 
8<)8;  Parker  v.  Carter,  4  Hare,  409;  Harman\.  Richards.  10  Hare, 
81;  Carter  V.  Hind.  22  L.  T.  116;  4  Hare,  400,  409;  Whithread  v. 
Smith.  3  De  G.  Mac.  &  G.  727,  740;  Hewison  v.  Negus,  16  Beav. 
600;  17  Jur.  567;  Turnley  v.  Hooper,  3  Sm.  &  G.  349;  Atkinson 
V.  Smith,  3  De  G.  &  Jo.  186;  Teasdale  v.  Braithu-aite,-i  Ch.  D.  85; 
5  Ch.  D.  630.  And  see  In  re  Foster  and  Lister,  6  Ch.  D.  87; 
Lipich  v.  Lynch,  2  L.  R.  Ir.  501:  disapproving  of  Butterfield  v. 
Heath,  15  Beav.  408;  and  commenting  on  In  re  Goodright  d. 
Humphreys  v.  Moses,  2  "Wm,  Black,  1019;  Cume  v.  Ni7id,  1  Mv.  & 
Cr.  17. 

When  the  concurrence  both  of  the  husband  and  wife  is  necessary 
to  a  postnuptial  settlement,  the  consent  of  each  to  the  alteration 
made  thereby  constitutes  a  valuable  consideration;  Parker  v.  Car- 
eer, 4  Hare,  400,  409;  In  re  Foster  and  Lister,  6  Ch.  D.  89.  But 
this  is  not  the  case  where  the  husband  joins  in  a  settlement  of 
property  of  which  the  wife  is  the  sole  and  absolute  owner,  as  being 
settled  to  her  separate  use:  Shurmur  v.  Sedgwick,  24  Ch.  D.  597. 
[The  tendency  in  the  United  States  is  to  sustain  and  carry  into 
effect  an  executory  trust  in  favor  of  a  wife  or  child  founded  upon  a 

397 


*  339  ELLISON  V.  ELLISON. 

meritorious  consi deration  if  the  instrument  is  under  seal:  Perry 
on  Trusts,  Sec.  109;  Mclntyre  v.  Hufrhes,  4  Bibb,  186;  Brijrht  v. 
Bright,  8  B.  Mon.  194;  Thompson  v.  Thompson,  2  How.  (Miss.) 
737;  Harris  v.  Haines,  G  Md.  435.] 

The  concurrence  also  of  a  tenant  in  tail  in  remainder,  in  disen- 
tailing an  estate,  would,  it  seems,  be  ample  consideration  for  a  set- 
tlement thereof,  even  as  against  a  purchaser:  Mijddleton  v.  Lord 
KeMyon,  2  Ves.  Jun.  391;  Doe  v.  Rolfe,  8  Ad.  &  Ell.  650;  Tarleton 
V.  Liddell,  17  Q.  B.  390. 

A  mere  voluntary  deed  of  settlement  of  the  husband's  property 
on  the  separation  of  husband  and  wife,  would  not  be  binding  as 
against  his  creditors  (Fitzer  v.  Fitzer,  2  Atk.  511;  Clough  v.  Lam- 
bert, 10  Sim.  174),  or  against  subsequent  purchasers  or  mortgagees 
(Coivx  V.  Foster,  1  J.  &  H.  30)  of  the  husband. 

A  covenant,  however,  by  the  trustees  to  indemnify  the  husband 
against  the  wife's  debts  (Stephens  v.  Olive,  2  Bro.  C.  C.  90;  Wor- 
rall  V.  Jacob,  3  Mer,  256),  or  a  relinquishment  of  her  claim  to  ali- 
mony (Hobbs  V.  Hull,  1  Cox,  445),  and  perhaps  a 
[  *  339  ]  ^compromise  of  a  suit  {Jodrell  v.  t/odreZZ,  9  Bea v.  45; 
Wilson  V.  Wilson,  1  Ho.  Lo.  Ca.  538),  would  constitute  a 
Valuable  consideration  as  against  creditors,  purchasers,  or  mort- 
gagees. A  settlement,  moreover,  founded  upon  a  compromise  of 
doubtful  rights  would  be  considered  as  executed  for  value.  See 
Stapilton  v.  Stapilton,  1  Atk.  2;  vol.  ii.,  post:  Heap  v.  Tonge,  9 
Hare,  90;  Harman  v.  Richards,  10  Hare,  81;  Stone  v.  Godfrey,  5 
De  G.  Mac.  &  G.76. 

The  Courts,  moreover,  considering  the  law  under  the  statute  27 
Eliz.  c.  4,  by  which  a  person  can  indirectly  get  rid  of  a  settlement, 
to  be  unsatisfactory,  have  held  that  a  small  and  inadequate  con- 
sideration is  sufficient  to  support  such  a  settlement. 

The  result,  in  effect,  of  the  authorities  appears  to  be  that  if  upon 
the  occasion  of  executing  that  which  is  called  a  voluntary  settle- 
ment— that  is,  a  deed  which  is  not  induced  by  marriage  or  any 
marriage  considerations,  or  the  actual  sale  of  property,  if  between  a 
father  and  son,  husband  and  wife,  parent  and  child,  in  any  way 
whatever — an  instrument  is  executed  which  ordinarily  is  called  a 
voluntary  settlement,  and  it  turns  out  that,  instead  of  being  purely 
voluntary,  any  consideration  whatever  was  paid  or  given,  or  any 
benefit  rendered  to  the  grantor,  the  Court  will  anxiously  lay  hold  of 
any  circumstances  constituting  a  consideration  moving  from  the 
grantee  to  the  grantor  to  take  a  case  out  of  the  category  of  volun- 
tary settlements:  per  il/aZms,  V.-C,  20  L.  R.  Eq.  218.  Thus,  a 
covenant  by  the  grantee  of  an  estate  to  indemnify  the  grantor  from 
a  mortgage,  except  the  payment  of  interest  during  her  life  ( Toicn- 
end  V.  Toker,  1  L.  R.  Ch.  App.  446);  a  covenant  by  the  grantee  of 
farming  property  to  pay  all  the  debts  "  in  connection  with  the 
farm,"  although  there  were  other  debts  (In  re  Johnson,  20  Ch.  D. 
389);  a  provision  by  a  stranger  for  payment  of  the  settlor's  debts 

398 


i;llison  v.  ELLISON,  *340 

(Forclv.  Stuart,  15Beav.  498),  or  eve q  an  advaacc*  by  a  stranger 
upon  the  security  of  a  promissory  note  to  pay  the  interest  of  a  mort- 
gage on  the  estate  put  into  settlement  then  in  arrear,  and  other 
debts  of  ttie  settlor  {Bayspoole  v,  Collins,  0  L.  11.  Ch.  App.  228); 
an  agreement  acted  upon  by  the  grantee  in  consideration  of  the 
settlement  to  remove  to  a  larger  house,  and  take  the  grantcjr  to  live 
with  him,  thereby  incurring  considerable  expense  ( Tounu-nd  v. 
Toker,  1  L.  11.  Ch.  App.  440;  and  see  J  Joe  v.  James,  IG  East,  212); 
have  been  held  to  render  a  settlement  otherwise  voluntary  one  for 
valuable  consideration.  See  also  Thompson  v.  Welistcr,  4  Do  G.  & 
J.  600;  Ford  v.  Stuart,  Ih  Jieav.  498;  Roe  v.  Mitton,  2  ANils. 
35G. 

It  has  been  recently  held  that  *  a  settlement  of  a  lease-  [  *340  ] 
hold  property  is  not  a  voluntary  conveyance  under  27  Eliz. 
c.  4,  upon  the  ground  that  the  assignment  of  leasehold  property  to 
which  liability  is  attached  is  in  itself  a  conveyance  for  valuable  con- 
sideration: Price  V.  Jenkins,  5  Ch.  D.  619;  Anon.,  cited  5  Ch.  D. 
620;  Ex  jyarte  Doble,  2Q  W.  R.  407;  and  consider  Eosher  \.  Wil- 
liams, 20  L.  R.  Eq.  210. 

The  case,  however,  of  Price  v.  Jenkins,  5  Ch.  D.  619,  although  de- 
cided under  27  Eliz.  c.  4,  has  been  held  not  to  be  applical)le  to  cases' 
under  13  Eliz.  c.  5  {In  re  Ridler,  Ridler  v.  Ridler,  22  Ch.  D.  74) ;  and 
although  it  has  not  been  expressly  reversed,  its  authority  has  been 
shaken  by  the  observations  of  Sir  G.  Jessel,  M.  R.,  in  Ex  j)arte  Hill- 
man,  10  Ch.  D.  22. 

It  has,  moreover,  been  held  that  a  voluntary  conveyance  of  free- 
holds cannot  be  converted  into  a  conveyance  for  valuable  considera- 
tion by  an  assignment  of  leaseholds  in  the  same  deed:  In  re  Marsh 
and  Earl  Granville,  24  Ch.  D.  11,  25,  26;  Gardiner  v.  Gardiner,  12 
I.  C.  L.  R.  565;  Lee  v.  Matthews,  6  L.R.  Ir.  580;  Hamilton  v.  Mol- 
loy,  5  L.  R.  Ir.  339. 

A  mere  covenant,  however,  by  the  grantee  in  a  deed  conveying  the 
whole  real  estate  of  the  grantor,  and  otherwise  voluntary,  that  the 
grantee  would  under  certain  circumstances  build  a  house  on  part  of 
the  estate  conveyed  within  a  limited  time,  but  without  any  shifting 
clause  or  provision  for  defeasance  in  case  of  non-performance  of 
the  covenant,  will  raise  no  consideration  affecting  the  voluntary 
character  of  the  settlement:  Rosher  \.  Williams,  20  L.  II.  Eq.  210. 

Marriage  itself  is  a  sufficient  consideration  for  an  antenuptial 
settlement,  upon  the  husband,  wife,  and  issue  of  the  marriage: 
Nairne  v.  Proxvse,  6  Ves.  752;  O'Gormon  v.  Comyn,  2  S.  &  L.  147; 
Broicn  v.  Jones,  1  Atk.  190;  Ex  parte  McBurnie,  1  De  G.  Mac.  & 
G.  441.  [Perry  on  Trusts,  Sec.  10<.]  But  the  marriage  consider- 
ation will  not  extend  to  limitations  to  collaterals  so  as  to  support 
them  agaiast  a  subsequent  sale  to  a  bona  fide  purchaser  (Sutton  v. 
Cheficynd,  3  Mer.  249;  Heap  v.  Tonge,  d  Hare,  104;  Jetikius  \. 
Keinisfi,  B.{ird.  395;  White  v.  Stringer,  2  Lev.  105;  Osgood  v.  Strode, 
2  P.  Wms.  245;  Ball  v.  Burnford,  Prec.  Ch.  113;  Reeies  v.  Reeves, 

399 


*  3-il  ELLISON  -y.  ELLISON. 

9  Mad.  132;  Hart  v.  Middlehurst,  3  Atk.  371;  Johnson  v.  Legard.  3 
Madd.  283;  Cottrell  v.  Homer,  13  Sim.  506;  Stacpoole  v.  Stacpoole, 
2  C.  &  L.  489;  Kekewich  v.  Manning,  1  De  G.  Mac.  &  G.  176; 
Massy  v.  Travers,  10  Ir.  C.  L.  459;  Re  Cullhi's  Estate,  14  Ir.  Ch. 
506;  Smith  v.  Cherrill,  4  L.  R.  Eq.  390);  uoless,  as  we  shall  here- 
after see,  there  is  some  other  consideration,  irrespec- 
[*341  ]  live  of  the  marriage,  imported  to  support  *  them:  Fordw 
Stuart,  15  Beav.  493—499. 
"Whore  the  settlement  on  the  marriage  of  hnsband  and  wife  is 
made  by  the  assistance  of  a  third  party,  a  limitation  to  collaterals 
will  be  for  value.  In  the  case,  for  instance,  of  a  father  tenant  for 
life,  with  remainder  to  his  son  in  tail,  they  may  agree  upon  the 
marriage  of  the  son  to  settle,  not  only  upon  his  issue,  but  upon  the 
brothers  and  uncles  of  that  son,  and  the  question  would  be,  whether 
they,  though  not  within  the  consideration  of  the  marriage  are  not 
within  the  contract  between  the  father  and  the  son,  both  having  a 
right  to  insist  upon  a  provident  provision  for  uncles,  brothers,  sis- 
ters, and  other  relatives,  and  to  say  to  each  other,  "I  will  not  agree 
unless  you  will  settle":  the  Court  has  held  such  a  claim  not  to  be 
that  of  a  mere  volunteer,  but  as  falling  within  the  range  of  the 
'consideration:  per  Lord  Eldon,  C,  in  Pulverfoft  v.  Pulvertoft,  18 
Ves.  92. 

And  limitations  of  a  widow's  estate  in  her  marriage  settlement, 
on  a  second  marriage  in  favour  of  her  children  by  a  former  mar- 
riage, will  also  be  valid  against  purchasers,  especially  where  there 
are  reciprocal  considerations,  both  on  the  part  of  the  husband  and 
wife,  by  provisions  made  for  the  issue  of  the  second  marriage: 
Neivstead  v.  Searlcs,  1  Atk.  265;  and  see  Kingy.  Cotton,  2  P.  Wms. 
674;  Doe  v.  Lewis,  11  C.  B.  1035;  and  the  same  considerations 
would  apply  to  the  issue  of  a  second  marriage  or  to  collaterals 
(Jenkins  v.  Keijmis,Ijex.  150,  237;  Osgood  v.  Strode,  2  P.  "Wms.  256.) 
And  the  substitution,  by  the  mother  of  the  husband,  of  a  security 
for  an  annuity  on  the  whole  of  the  estate- for  a  security  on  a  part 
thereof,  has  been  held  a  sufficient  consideration  for  limitations  in 
the  son's  marriage  settlement  in  favour  of  his  younger  brothers: 
Roe  V.  Mitten,  2  Wils.  356;  but  see  Doe  v.  Rotfe,  *8  Ad.  &  Ell.  650; 
and  observations  by  Lord  St.  Leonards,  Sug.  V.  &  P.  716,  n.,  14th 
ed.  So  limitations  in  favour  of  the  issue  male  of  a  subsequent 
marriage,  interposed  between  limitations  in  favour  of  sons  and 
daughters  of  the  marriage,  have  been  held  valid:  Clayton  v.  Earl 
of  Wilton,  3  Madd.  302^^  n. ;  In  re  Sheridan's  Estate,  1  L.  R.  Ir.  54. 
It  may  hero  be  mentioned  that  a  deed  apparently  for  valuable 
consideration,  as  in  the  case  of  a  secret  mortgage  to  secure  a  debt 
without  the  knowledge  or  any  pressure  on  the  part  of  the  mortga- 
gee, and  retained  by  the  mortgagor  for  his  own  purposes,  may  be 
void  under  the  statute  against  a  subsequent  mortgagee:  Cracknall 
v.  Janson,  11  Ch.  D.  1;  and  see  Lloyd  v.  Atticood,  3  De  G.  &  Jo. 
614;  Perry  Herrick  \.  Attwood,  25  Beav.  205;  2  De  G.  &  Jo.  2L 
400 


ELLISON  V.  ELLISON.  '•  343- 

For  Forms  of  Decrees  setting  aside  voluntary  convey- 
ances under  *  27  Eliz.  c.  4,  see  2  Setqn  on  Decrees,  1374,   [  *  342  ] 
4th  ed. 

Chattels jjer soil aldo  not  come  within  the  statute  27  Eliz.  c.  4;  a 
voluntary  settlement,  therefore,  of  chattels  personal  cannot  be  de- 
feated by  a  subsequent  sale:  Sloane  v.  Cadogan,  2  Sug.  V.  &  P., 
App.  XXIV.  ed.  11;  Hill  v.  Cureton,  2  My.  &  K.  502;  Watson  y. 
Parker^  10  Jur.  (N.  S).  577;  Jovcs  v.  Croiicher,  1  .S.  <&  S.  315. 

Voluntary  deeds,  when  void  against  creditors,] — By  the  statute  13: 
Eliz.  c.  5  (made  perpetual  by  29  Eliz.  c.  5),  a  voluntary  settlement 
of  real  orjyersonal  estate,  liable  to  be  taken  in  execution,.  mxII  be* 
void,  and  may  bo  set  aside  by  a  creditor  of  the  settlor  upon  his 
showing  au  intent  on  the  part  of  the  settlor  to  delay,  hinder,  or  de- 
fraud creditors,  'with  an  exception  in  favour  of  conveyances  made 
upon  good  consideration  and  l>onri  fide  to  persons  without  notice  of 
the  intended  fraud:  Sect.  C.  [If  the  settlor  has  reserved  to  revoke 
the  settlement,  or  to  charge  it  with  his  debts  he  can  do  nothing  to 
impair  the  rights  of  those  in  remainder:  Beal  i\  Warren,  2  Gray, 
447;   A.ubuchon  v.  Bender,  44  Mo.  560;  Dean  r.  Adler,  30  Md.  M7.] 

The  statute,  however,  did  not  apply  to  things  which  could  nut  bo' 
taken  in  execution,  such  as  stock  (Dnndas  v.  Didens,  1  Yes.  Jun. 
190),  a  bond  (Sims  v.  Thomas,  12  Ad.  &  Ell.  530),  or  any  other 
chose  in  action  [Norcidt  v.  Daddy  Cr.  &  Ph.  100).  Copyholds 
(Mattheics  v.  Feaver,  1  Cox,  278),  unless  from  their  particular  ten- 
ure or  special  custom  they  were  liable  to  debts  {lb.  280):  a  volun- 
tary aasignment  therefore  of  such  things  was  valid  against  cred- 
itors. 

But  Tinder  the  statute  of  13  Eliz.  c.  5,  taken  in  connection  with 
the  Insolvent  Debtors  Act  (7  Geo.  4,  c.  57),  such  an  assignment 
was  void  as  against  creditors  (Norcidt  v.  Dodd,  Cr.  &  Ph.  100, 102), 
because  under  the  Insolvent  Debtors  Acts  all  the  debtor's  pro])erty 
became  liable  to  his  debts:  Ih.  103. 

And  the  result  was  the  same  in  connection  with  the  assignor's 
death  {lb.  102),  because,  after  his  death,  his  creditors  might  reach 
his  personal  property  of  whatever  kind:  lb. 

And  now  cash,  banknotes,  stock,  and  all  such  choses  in  action, 
by  virtue  of  1  &  2  Yict.  c.  110,  s.  12,  may  be  taken  in  execution, 
and  come  within  the  statute  13  Eliz.  c.  5:  Barrackv.  AVCulloch,  3  K. 
&  J.  110;  and  see  Stokoe  v.  Coican,  29  Beav.  037,  where  an  assign 
ment  of  a  policy  on  his  life  by  a  person  in  extremis  was  set  aside  as 
fraudulent  against  his  creditors:  Larc\.  The  Indisputable  Life  Policy 
Company,  1  K.  &  J.  223 ;  Bobson  v.  M '  Greight,  25  Beav.  272.  And 
property  which  cannot  be  taken  in  execution  under  1  &  2  Vict.  c. 
110,  is  in  bankruptcy  brought  within  13  Eliz.  c.  5:  1  Sm.  L.  Ca. 
38,  39,  8th  ed.  And  copyholds  also,  which  can  now  be  taken  in 
execution:  lb. 

The  intent  to  delay,  hinder,  *or  defraud  creditors  may  [  ^'343  ] 

26  WHITE  ON   EQUITY.  401 


*  343  ELLISON  V.  ELLISON. 

b(i  actual  and  express  (Spirett  v.  Willows,  3  Du  G.  Jo.  &  Sra. 
'293),  or  it  may  be  inferred  in  different  ways,  as,  for  instance, 
by  the  creditor  showing  that  the  settlor  was  indebted  to  the  extent 
of  insolvency,  or  even  that  he  was  largely  indebted  at  the  time  of 
making  the  settlement,  and  soon  afterwards  became  insolvent: 
Fletcher  v.  Sedley,  2  Vern.  490,  and  note:  Taylor  v.  Jones,  2  Atk. 
()00;  Townsend  w.Westacott,  2  Beav.  340;  Skarf  \.  Soulby,  1  Mac. 
&  G.  364;  Jenkyn  v.  Vaughan,  3  Drew.  419;  Re  Magmcley' s  Trust, 

5  De  G.  &  Sm.  1;  Holmes  v.  Penney,  3  K.  &  J.  90;  Barton  v.  Van- 
heythuysen,  11  Hare,  126;  French  v.  French,  6  De  G.  Mac.  &  G. 
95;  Clemments  v.  Eccles,  11  Ir.  Eq.  Rep.  229;  Neale  v.  Day,  7  W. 
R.  (V.-C.  W.)  45;  Christy  v.  Courtenay,  26  Beav.  140;  Penhall  v. 
Ehcin,  1  Sm.  &  GifP.  258;  ^craman  v.  Corbett,  1  J.  &  H.  410;  Elsey 
V.  Cox,  26  Beav.  95;   Thomjyson  v.  Webster,  4  Drew.  628;  4   De  G. 

6  Jo.  600;  7  Jur.  (N.  S.)  Ho.  Lo.  531;  Murphy  v.  Abraham,  lb  Ir. 
Ch.  Rep.  371;  Graham  v.  0'Keeffe,16  Ir.  Ch.  Rep.  1;  Crossley  \. 
Fhvorthy,  12  L.  R.  Eq.  158;  Cornish  v.  Clark,  14  L.  R.  Eq.  184; 
Taylor  v.  Coenen,  1  Ch.  D.  636.  [It  is  the  fraud alent  intent  which 
invalidates  such  a  gift:  Mosely  v.  Gainer,  10  Texas,  393;  Poague?;. 
Boyce,  6  J.  J.  Marsh,  70;  Haymaker's  Appeal,  3  P.  F.  Smith,  306; 
Florence  Sewing  Machine  Co.  v.  Ziegler,  58  Ala.  221;  Root  v.  Rey- 
nolds, 32  Vt.  139. 

A  conveyance  in  fraud  of  creditors  is  void  only  as  against  those 
who  may  be  injured  thereby:  Sexton  v.  Wheaton,  1  Am.  Lead.  Cas. 
45;  Chappin  v.  Pease,  10  Conn.  69;  Bouslough  v.  Bouslough,  18  P. 
F.  Smith,  495;  Burtch  v.  Elliott,  3  Ind.  99.] 

There  may,  however,  be  an  exception  to  this  rule,  where  a  man  is 
perfectly  solvent  one  year  and  insolvent  the  next;  as,  for  instance, 
where  there  has  been  some  unexpected  loss  or  something  which  could 
not  have  been  reasonably  reckoned  upon  when  the  settlement  was 
executed:  per  Matins,  V.-C,  in  Crossley  v.  Elworthy,  12  L.  R.  Eq. 
167. 

Where,  however,  after  deducting  the  property  which  was  the  sub- 
ject of  the  settlement,  sufficient  available  assets  were  not  left  for  pay- 
ment of  the  settlor's  debts  {Freeman  v.  Pope,  5  L.  R.  Ch.  App.  538, 
541),  a  fortiori,  if  by  putting  everything  into  settlement,  the  effect 
was  to  render  the  settlor  absolutely  insolvent,  and  to  deprive  him  of 
the  means  of  paying  his  debts  (Smith  v.  CherriU,  4  L.  R.  Eq.  390, 
396;  Freeman  v.  Po2^e,  5  L.  R.  Ch.  App.  538;  9  L.  R.  Eq.  206),  the 
settlement  will  be  void  against  creditors,  because  in  such  cases  the 
intention  to  defeat,  hinder  or  delay  them  within  the  meaning  of  the 
statute  would  necessarily  be  inferred.  See  the  remaiks  in  the  last 
two  cases  on  Spirett  v.  Willoivs,  3  De  G.  Jo.  &  Sm.  293. 

The  mere  fact  that  the  settlor  owed  some  debts  is  not  sufficient  to 
render  the  deed  void  {Skarf  v.  Soulby,  1  Mac.  &  G.  364) ;  nor  is  it 
necessary  to  prove  that  when  he  executed  the  deed  he  was  in  a  state 
of  absolute  insolvency  {Townsend  v.  Westacott,  2  Beav.  340;  4  Beav. 
58). 

402 


ELLISO.V  V.  ELLISON.  *  344 

[A  voluutary  conveyance  in  good  as  against  Bubsoqiniiit  civditors 
unless  made  with  the  fraudulent  intention  of  defeating  their  claims: 
Harlan  v.  Maglaughlin,  'J  Norris,  297;  Snyder  v.  Christ,  8  Wright, 
499;  Mattingly  v.  Nye,  cS  Wallace,  370;  Salmon  v.  Bennett,  1  Conn. 
525.] 

In  the  absence,  moreovei-,  of  actual  intent  to  defraud 
creditors,  a  voluntary  settlement  made  by  a  *  settlor  in  em-  [  *  344  ] 
barrassed  circumstances,  but  having  property  not  included 
in  the  settlement  ample  for  the  payment  of  debts  owing  l)y  him  at  the 
time  of  making  it,  may  be  supported  against  creditors,  although 
debts  due  at  the  date  of  the  settlement  may  to  a  considerable  amount 
remain  unpaid:  Kent  v.  Rilej/,  14  L.  R.  Eq.  190. 

Where  there  is  an  actual  intent  to  delay  and  hinder  creditors,  it 
is  immaterial  whether,  when  the  settlement  was  executed,  the  settlor 
was  indebted  or  not  indebted;  as,  for  instance,  where  a  perscm  settles 
all  his  present  and  futvire  property  ( Ware  v.  Gardner,  7  L.  R.  Eq. 
317,  321;  Spirett  v.  Willows,  3  De  G.  Jo.  &  Sm.  293;  Taijlor  v. 
Coenen,  1  Ch.  D.  641j;  and  in  the  case  of  a  trader  engaged  in  trade 
it  is  immaterial  that  the  settlement  isof  a  tritiing  amount  compared 
with  the  extent  of  his  business:   Taylor  v.  Coenen,  1  Ch.  D.  641. 

[Any  person  may  make  a  gift  which  bears  but  an  insignificant  pro- 
portion to  his  estate,  and  if  his  remaining  property  is  ample  to  dis- 
charge his  debts,  the  transaction  cannot  be  impeached:  2  Kent's 
Com.  441,  and  notes.  The  true  rules  appear  to  be  "that  if  the  donor 
has  at  the  time,  the  pecuniary  ability  to  withdraw  the  amount  of  his 
donation  from  his  estate  without  the  least  hazard  to  his  creditors, 
the  gift  will  be  valid:"     Snell's  Eq.  64.] 

There  is  a  dictum  of  Lord  Westbnry  to  the  effect  that,  "  if  the  debt 
of  the  creditor  by  whom  the  voluntary  settlement  is  impeached  ex- 
isted at  the  date  of  the  settlement,  and  it  is  shown  that  the  remedy 
of  the  creditor  is  defeated  or  delayed  by  the  existence  of  the  settle- 
ment, it  is  immaterial  whether  the  debtor  Avas  or  was  not  solvent 
after  making  the  settlement:"  Spirett  v.  Willoivs,  3  DeG.  Jo.  &  Sm. 
302.  This  dictum,  however,  has  been  disapproved  of  by  Lord  Hath- 
erley,  C,  as  being  expressed  in  probably  too  large  terms:  see,  i-Vee- 
man  v.  Pope,  5  L.  R.  Ch.  App.  543. 

Although  at  law  it  was  held  otherwise  (Oswald  v.  Thompson,  2  Ex. 
215;  sed  vide  Graham  v.  Furber,  14  C.  B.  410),  inequity  an  assign- 
ment was  void  when  made  with  the  intent  to  hinder  and  deieai  future 
creditors  (Tarback  v.  Marbury,  2  Vern.  510;  St.  Amand  v.  Lady 
Jersey,  1  Com.  255;  Hungerford  v.  Earle,  2  Vei*n.  201;  Stilemanv. 
Ashdown,  2  Atk.  481;  Ware\.  Gardner,  7  L.  R.  Eq.  317),  and  where 
a  voluntary  deed  is  set  aside  under  the  statute,  cveiWiovi^  subsequent 
and  antecedent  to  the  deed  are  let  in  together:  Barton  v.  Vaiihey- 
thuysen,  11  Hare,  126;  133;  Strong  v.  Stro))g,  18  Beav.  408. 

If  there  bo  a  creditor  whose  debt  was  incurred  subsequently  to  the 
voluntary  deed,  and  there  is  also  at  the  time  of  filing  the  bill  an  un- 
paid creditor  whose  debt  was  incurred  prior  to  the  deed,  the  subse- 

403 


*3-l5  ELL  SOX  V.  ELLISON. 

qaent  creditor  has  exactly  the  same  right  to  commence  an  action 
as  the  prior  creditor  has:  Jenkyn  v.  Vaughan,  3  Drew.  419;  Free- 
man V.  Pope,  1)  L.  R.  Eq.  206;  5  L.  E.  Ch.  App.  588. 

But  if  a  subsequent  creditor  files  a  bill,  and  it  can  be  shown  that 
the  person  who  executed  the  deed,  though  indebted  at  the  time  he 
made  it,  has  since  paid  every  debt,  it  is  very  difficult  to  say  that  he 
executed  the  settlement  with  an  intention  to  defeat  or 
[  *  345  ]  *  delay  creditors,  since  his  subsequent  payment  shows  that 
he  had  not  such  an  intention:  per  Kindersley,  V.-C,  in 
Jenkyn  v.  Vaughan,  3  Drew.  425. 

A  voluntary  settlement  moreover  may  be  executed  under  such 
circumstances,  as  to  make  it  void  as  against  subsequent  creditors, 
although  all  antecedent  creditors  may  have  been  paid  [Richardson 
V.  Smallwood,  Jac.  559;  Holmes  v,  Penney,  3  K.  &  J.  90,  99),  where, 
for  instance,  it  has  been  executed  in  order  to  defeat  the  plaintifP  in 
an  action  {Kidney  \.  Caussmaker.  12  Ves.  138;  Barling  v.  Bishojoj), 
29  Beav.  417);  so  where  the  settlor,  being  solvent  at  the  time,  but, 
having  contracted  a  considerable  debt,  which  would  fall  due  in  the 
course  of  a  few  weeks,  made  a  voluntary  settlement  by  which  he  with- 
drew a  large  portion  of  hisp>roperty  from  the  payment  of  his  debts, 
after  which  he  collected  his  assets  and  (apparently  in  the  most  reck- 
less and  profligate  maner)  spent  them,  thus  depriving  the  expectant 
creditor  of  the  means  of  being  paid  [Freeman  v.  Pope,  5  L.  R.  Ch, 
App.  538);  so  likewise  where  a  man  made  a  voluntary  settlement 
in  contemplation  of  his  going  into  trade,  especially  if  it  be  of  a 
hazardous  character  [Mackay  v.  Douglas,  14  L.  R.  Eq.  106),  or  one 
about  which  he  knew  nothing  [Ex  parte  Russell,  19  Ch.  D.  588); 
and  in  such  cases  the  o7ius  would  lie  upon  the  settlor  of  showing 
that  he  was  in  a  position  to  make  a  settlement  [Mackay  v.  Douglas, 
14  L.  R.  Eq.  106),  if,  indeed,  it  would  not  be  void  independently  of 
the  question  whether  he  was  solvent  at  the  date  thereof  [Ex  j^ctrte 
Russell,  19  Ch.  D.  588).  It  is,  however,  always  difficult  to  impeach 
successfully  a  deed  as  being  fraudulent  against  future  creditors  if 
it  is  admitted  there  is  no  intention  to  defraud  present  creditors 
[Smith  v.  Tatto7i,  6  L.  R.  Ir.  32,  44). 

The  statute  is  applicable  where  the  debts  were  contracted  by  the 
person  deceased  from  whom  the  settlor  derived  the  property,  hence 
a  fraudulent  conveyance  may  be  made  by  an  executor  and  by  an 
heir  of  the  property  which  they  have  taken  in  such  characters  re- 
spectively: Ajyharry  v.  Boddingham.,  Cro.  El.  350;  Goocli's  Case, 
5  Rep.  60;  Richardson  v.  Horton,  7  Beav.  112. 

A  voluntary  deed  executed,  pendente  lite,  for  the  purpose  of  de- 
feating any  process  in  the  nature  of  execution,  will  be  set  aside  in 
equity  [Blenkinsopp  v.  Blenkinsopp,  12  Beav,  568,  1  De  G.  Mac.  & 
G.  495),  or  where  a  man  knows  that  a  decision  is  about  to  be  pro- 
nounced against  him:  Barling y.  Bishop,  29  Beav.  417;  Reese  River 
[Silx:ier  Mining  Company  v.  Ativell,  7  L.  R.  Eq.  347.  Secus  it  seems 
■where  a  man  makes  such  conveyance  bona  fide  for  the  payment  of 
404 


ELLISON  V.  KLLISON.  *  34G 

some  creditors,  and  not  as  a  contrivance  fur  his  own  per- 
*sona]  benefit,  even  although  the  deed  should  contain  a  [  *' 340  | 
stipulation  that  the  debtor  shouM  remain  in  possession  of 
tlie  property  for  six  mouths,  but  not  so  as  to  let  in  any  execution 
or  sequestration,  and  in  case  any  such  should  be  enforced  his  pos- 
session should  cease:  Alton  v.  HaiTison,  4  L.  R.  Ch.  App.  G22. 

An  antemqitial  settlement  by  a  man  indebted  at  the  time,  even 
although  the  wife  is  aware  of  it,  will  not  render  the  settlement  void 
as  against  creditors  (Campioiiy.  Cotton,  17  Yes.  203,  271;  Ex  parte 
McBurnie,  1  De  G.  Mac.  &  G.  441;  Hardey  v.  Green,  12  Beav.  J  82). 
But  where  the  wife  is  aware  that  the  settlement  is  in  efiect  a  scheme 
to  defeat  creditors,  as,  for  instance,  where  a  man  deeply  embar- 
rassed marries  a  woman  with  whom  he  has  previously  cohabited, 
settling  all  his  property  upon  her,  she  knowing  the  state  of  his 
affairs  {Columbine  v.  Penhall,  1  Sm.  &  G.  228;  Buhner  v.  Hunter, 
8  L.  R.  Eq.  46),  or  that  he  has  committed  acts  of  bankruptcy 
{Fraser  v.  Thompson,  4  De  G.  &  Jo.  059,  reversing  S.  C.  1  Gitf. 
49),  the  settlement  will  be  void  as  against  his  creditors.  It  seems, 
however,  that  it  must  be  clear  that  the  wife  was  privy  to  the  fraud 
of  the  husband:  Ex  j^arte  Rutherford,  17  Ves.  2()9,  cited;  Mont. 
293,  cited;  Ex  ijarte  Mayor,  Mont.  292. 

An  antenuptial  settlement,  so  far  as  relates  to  limitations  to 
collaterals,  is  in  general  voluntary  (see  ante,  p.  340),  and  there- 
fore, within  the  statute  of  13  Eliz.  c.  5,  void  as  against  creditors. 
[The  extent  to  which  a  man  has  the  power  to  make  a  voluntary 
disposition  of  his  property,  is  frequently  called  into  qitestion  in  the 
cases  of  settlements  made  by  a  husband  upon  his  wife. 

The  gift  must  be  reasonable  and  bear  a  just  and  fair  proportion 
to  the  actual  amount  of  his  property:  Wickes  v.  Clark,  8  Paige, 
151;  Mellon  v.  Mulvey,  S  C.  E.  Green,  198;  Penna.  Salt  Manf.  Co. 
V.  Nell,  4  P.  F.  Smith,  9;  Thompson  v.  Thompson,  1  Norris,  378; 
Morris  v.  Ziegler,  21  P.  V.  Smith,  450.  A  man  cannot  strip  him- 
self of  all,  or  the  greater  part  of  his.  means  for  the  purpose  of 
making  a  gift  to  his  wife.]  See  Smith  v.  Chen-ill,  4  L.  R.  Eq.  390, 
where  a  settlement  made  by  a  lady  on  her  marriage  was,  so  far  as 
it  was  made  in  favour  of  collaterals,  set  aside  to  the  extent  of  debts 
owing  by  her  at  the  time  of  her  marriage. 

A  covenant  moreover  in  a  marriage  settlement  by  a  trader, 
though  then  solvent,  to  settle  all  his  acquired  property  was  held, 
independently  of  the  91st  section  of  the  Bankruptcy  Act,  1869,  to 
be  void  as  against  creditors:  Ex  parte  Bolland,  In  re  Clint,  17  L. 
R.  Eq.  115.  See  also  Higinbotliam  v.  Holme,  19  Yes.  88;  Ijister  v. 
Garland,  5  Sim.  205. 

Appointments,  moreover,  under  an  antenuptial  settlement,  where 
there  appears  to  be  an  intent  to  defeat  creditors,  will  be  invalid 
{Acraman  v.  Corbett,  1  J.  &  H.  410);  and  the  result  is  the  same 
when  the  appointment  is  under  a  settlement  made  between  a  father 
and  son:  Bey f us  v.  Bullock,  7  L.  R.  Eq.  391. 

405 


-"•■  347  ELLIriON  V.  ELLISON. 

A  j^ostnuptial  settlement  by  a  settlor,  if  insolvent  at  the  time, 
though  in  pursuance  of  a  verbal  contract  before  marriage,  is  void 
against  his  creditors  [Worden  v,  Jones,  23  Beav.  487;  2  De  G.  & 
Jo.  76),  overruling  Barkworth  \.  Young,  4  Drew.  1;  and 
[*  347  ]  see  Troivellw.  Shenton,  8  Ch.  D.  324;  but  *  where  there  is 
some  valuable  consideration,  such  as  the  payment  of  the 
debts  of  the  settlor,  though  he  concealed  one  (Holmes  v.  Penney, 
3  K.  &  J.  90,  99),  or  a  loan  to  pay  off  other  debts  (  Thompson  v. 
Webster,  4.  Drew.  628;  4  De  G.  &  Jo.  600;  7  Jur.  N.  S.  (H.  L  ) 
531),  the  settlement  will  not  be  void. 

A  merely  meritorious  consideration,  such  as  a  debt  for  advances 
by  a  parent,  barred  by  the  Statute  of  Limitations,  is  not  sufficient 
to  support  a  postnuptial  settlement  against  creditors:  Pennhall 
V.  Elwin  1  Sm.  &  G.  258. 

And  where  a  man,  though  not  indebted,  by  postnuptial  settle- 
TYient,  settles  property  in  such  a  way  that  it  shall  go  to  others,  rather 
than  to  his  creditors,  it  will  be  fraudulent  within  the  statute.  See 
In  re  Pearson,  Ex  parte  Stephens,  3  Ch.  D.  807.  "Where  a  man  in 
1858  not  then  engaged  in  trade,  and  who  owed  no  debts,  made  a 
post-nuptial  settlement  of  lOOOZ.  in  trust  for  life  himself  for  deter- 
minable on  bankruptcy,  remainder  to  his  wife  for  her  separate  estate 
for  life,  remainder  in  trust  for  the  children  of  his  marriage  with  an 
ultimate  trust  for  himself.  In  1873  he  for  the  first  time  engaged  in 
trade.  In  1875  he  was  adjudicated  bankrupt.  It  was  held  by  Bacon, 
V.  C,  that  the  settlement  was  void  in  toto  as  against  the  trustee  in 
bankruptcy. 

A  mere  deed  of  separation  whereby  the  husband  grants  an  an 
nuity  to  trustees   for  his  wife's  benefit  has  been  held  under  the 
statute  void  against  creditors:      Clough  v.  Lambert,  10  Sim.  174; 
Frampton  v.  Frampton,  4l  Beav.   287,  295;   Coivx  v.  Foster,  1  J.  & 
H.  30. 

But  it  seems  that  such  deed  would  be  valid  if  supported  by 
valuable  consideration  such  as  a  compromise  of  a  suit,  or  covenant 
on  the  part  of  the  trustees  to  indemnify  the  husband  against  the 
wife's  debts  (see  ante,  p.  338). 

A  settlement  apparently  voluntary,  may,  however,  be  supported 
as  against  creditors  by  proof  of  consideration  aliunde,  as,  for  in- 
stance, that  a  son  made  a  settlement  on  his  children  in  considera- 
tion of  a  loan  from  his  mother  (  Thompson  v.  Webster,  4  Drew.  628; 
Wakefield  v.  Gibbon,  1  Gifif.  401;  Gale  v.  Williamson,  8.  M.  &  W. 
405);  the  proof,  however,  of  the  consideration  must  be  clear  (&)^a- 
ham  V.  CKeefe,  16  Ir.  Ch.  1);  and  in  order  to  discourage  the  manu- 
facture of  considerations,  no  costs  in  such  cases  will  be  allowed: 
Thompson  v.  Webster,  4  Drew.  628. 

A  trust  deed  executed  by  a  man  who  is  insolvent  for  the  benefit  of 

all  his  creditors  equally  is  not  void  within  the  statute  13  Eliz.  c.  5: 

[No  creditor  is  allowed  to  obtain  a  secret  advantage  over  another 

and   any  agreements  tending  to  produce    such  an  advantage  are 

406 


ELLISON  t'.  ELLISON.  *348 

fraudulent  and  will  bo  declared  void:  Louchoina  Bros'  Appeal,  17 
P.  F.  Smith,  49;  Dougherty  v.  Savage,  28  Conn.  140;  Lawrence  v. 
Clark,  36  N.  Y.  158;  Case  v.  Gerish,  15  Pick.  40;  Mann  v.  Dar- 
lington, 3  Harris  (Pa.),  310.]  Evans  v.  Jones,  3  H.  &  C.  423;  Janes 
V.  Whitbread,  11  C.  B.  406;  Wolverl tampon,  &c.  Co.  v.  Marston,  7 
H.  &  N.  148;  Lee  v.  Green,  6  De  G.  Mac.  &  G.  155;  Hick- 
man *v.  Co.r,  18  C.B.  617;  3C.B.  (N.  S.)523;  8Ho.  Lo.  [  *  348  ] 
Ca.  268;  9  C.  B.  (N.  S.)  47. 

A  trust  deed  moreover,  for  such  of  the  creditors  as  come  in  and 
execute  the  deed  will  be  valid  as  to  each  creditor  who  assents 
(Harland  v.  Binks,  15  Q.  B.  713);  or  if  the  assignment  be  made  to 
a  creditor  and  communicated  to  him,  it  will  be  valid  as  to  him  with- 
out his  assent;  Siggers  v.  Evans,  5  Ell.  &  Bl.  367. 

Where,  however,  in  a  trust  deed  there  are  provisions  tending  to 
defeat,  delay,  or  hinder  creditors,  as,  for  instance,  providing  that 
tha  trustees  may  carry  on  the  business  of  the  debtor  as  they  think 
lit,  irrespective  of  the  wishes  of  the  creditors,  and  that  any  creditor, 
before  getting  a  dividend,  must  indemnify  the  trustees  (Spencer  v. 
Slater,  4  Q.  B.  D.  13 ) ;  or  if  it  authorises  the  creditors  to  carry  on  the 
business  of  the  debtor  upon  such  terms  that  the  creditors  would 
become  partners  in  such  business  (Owen  v.  Body,  5  Ad.  &  Ell.  28); 
the  deed  will  be  invalid  as  against  the  creditors;  secus,  where  the 
power  to  carry  on  the  business  is  contined  to  the  mere  purpose  of 
winding  it  up;  Hickman  v.  Cox,  18  C.  B.  617;  3  C.  B.  (N.  S.); 
523;  8  Ho.  Ca.  268;  9  C.  B.  (N.  S.)  47;  Janes  v.  Whitbread,  11 
C.  B.  406;  Coates  v.  Williams,  7  Exch.  205. 

As  money  or  banknotes  could  not,  previous  to  1  &  2  Vict.  c.  110, 
bo  taken  in  execution,  it  seems  that  a  purchase  in  the  name  of 
a  wife  or  child  would  not,  prior  to  the  passing  of  that  Act,  be  in- 
valid under  13  Eliz.  c.  5  (Proctor  v.  M'arren,  Sel.  Ch.  Ca.  78; 
Fletcher  v.  Sedley,  2  Vern.  490;  Glaister  v.  Hewer,  8  Ves.  199;  Dreiv 
V.  Martin,  2  H.  &  M.  130). 

Since  the  passing  of  the  previous  Act  such  purchase  has  been  de- 
cided to  be  invalid  within  the  latter  (Barton  v.  Vanheythuysen,  11 
Hare,  126,  133).  Gifts,  moreover,  in  money  or  banknotes  by  a 
father  to  his  children,  the  effect  of  which  would  be  to  defeat  or 
delay  his  creditors,  will  now  be  invalid  (French  v.  French,  6  DeG. 
Mac  &  G.  95;  Sims  v.  Thomas,  12  Ad.  &  E.  536;  Christy  v.  Conrte- 
nay,  13  Beav.  96);  and  in  a  recent  case  where  a  debtor,  in  a  weak 
state  of  mind  and  body,  distributed  the  whole  of  his  property,  con- 
sisting of  chattels,  money  in  the  bank,  and  secured  upon  mortgage 
among  his  children,  although  this  was  partly  in  consideration  of 
annuities  for  his  life,  partly  by  voluntary  settlement,  and  partly  by 
voluntary  gifts,  the  transaction  was  held  by  Lord  Rowilly.  M.  K. ; 
void  as  against  creditors  under  13  Eliz.  c.  5,  his  Lordship  being 
satisfied  upon  the  evidence  that  the  children  vi'ere  aware  at  the  time 
that  the  creditors'  claims  would  be  defeated,  though  it  did  not  ap- 

407 


*  349  ELLISON  V.  ELLISON. 

pear  that  the  debtor  had  any  such  intention:  Cornish  v. 
[  *349  ] .  Cla)%  14  L.  R.  Eq.  184.  So  an  annuity  or  bond  *  given 
to  secure  an  annuity  for  the  wife  of  the  settlor  has  been 
held  void  as  against  creditors  under  the  statute  [French  v.  French. 
6  De  G.  Mac.  &  G.  95;  Hue  v.  French,  26  L.  J.  Ch.  317);  and  in 
Neale  v.  Day,  4  Jur.  (N.  S. )  1225,  where  D.  assigned  his  business, 
goodwill,  and  office  furniture  to  W.,  in  consideration  of  cash  and 
a  bond  given  by  W.  to  K.  as  trustee,  for  securing  payment  of  an 
annuity  of  lOOZ,  to  H.,  the  wife  of  D.,  for  her  separate  use,  and  af- 
ter her  death  to  D.,  with  provisions  for  commuting  at  any  time, 
it  was  held  that  the  bond  was  fraudulent  and  void  against  cred- 
itors.    See  2  Seton,  Dec.   1370,  Form  4,  4th  ed. 

A  creditor  under  a  voluntary  post-obit  bond,  is  as  much  entitled 
to  the  benefit  of  the  statute  of  13  Eliz.  c.  5,  as  any  other  creditor. 
^Vhere,  therefore,  a  testator,  having  executed  a  voluntary  post-obit 
bond  for  securing  an  annuity  of  lOOZ.  to  his  daughter-in-law  for  her 
life,  afterwards  made  a  voluntary  settlement,  from  and  after  his  de- 
cease, in  favour  of  his  widow  and  child,  comprising  all  his  property 
(except  about  300Z. ),  and  before  his  death  acquired  only  about 
lOOOZ.  more,  it  was  held  by  Sir  G.  M.  Giffard,  V.-C,  that  the  settle- 
ment was  void  under  the  statute  as  against  the  bond  creditor: 
Adames  v.  Hallett,  6  L.  R.  Eq.  468. 

A  creditor,  however,  may  by  his  concurrence  with  or  acquiescence 
in  a  deed  voidable  under  13  Eliz.  c.  5,  preclude  himself  and  his  rep- 
resentatives from  impeaching  such  deed  (Olliver  v.  King,  8  De  G. 
Mac.  &  G.  110),  especially  if  he  has  been  a  party  with  the  donees 
to  instruments  and  transactions  proceeding  on  the  assumption  of  its 
validity:  lb.  And  an  inquiry  may  be  directed  whether  any  and 
which  of  the  creditors  of  the  settlor  had  acquiesced  in  a  voluntary 
deed:  Freeman  v.  Pox>e,  9  L.  R.  Eq.  212. 

It  may  be  here  mentioned  that  a  purchaser  from  a  volunteer 
under  a  deed  void  by  the  statute  of  13  Eliz.  c.  5,  will  be  preferred 
to  the  general  creditors  of  the  settlor  having  no  specific  charge: 
George  v.  Milhanke,  9  Ves.  190. 

Any  creditor  may  commence  an  action  to  set  aside  a  settlement 
under  13  Eliz.  c.  5,  and  it  will  not  be  affected  by  the  subsequent  in- 
solvency of  the  settlor  (Goldsmith  v.  Russell,  5  De  G.  Mac.  &  G. 
547),  and  it  ought  to  be  on  behalf  of  all  the  creditors  of  the  debtor: 
Reese  Silver  Mining  Comiyany  v.  Aticell,  7  L.  R.  Eq.  347.  [In 
Shulze's  Appeal,  1  Barr,  251;  Tomb's  Appeal,  9  Barr,  61;  and 
Fowler's  Appeal,  6  Norris,  456,  the  proposition  was  set  forth  that 
proceedings  to  avoid  a  fraudulent  transfer  will  enure  to  the  benefit 
only  of  those  who  institute  them — not  to  the  advantage  of  other 
creditors.] 

On  the  bankruptcy  of  the  settlor  the  trustees  in  his  banki'uptcy 
are  the  proper  parties  to  commence  such  action:  Collins  v.  Burton, 
4  De  G.  &  Jo.  612;   Goldsmith  v.  Russell,  5  De  G.  Mac.   &  G.  547; 

408 


ELLISON  V.  ELLISON.  *  350 

Butcher  v.   Harrison,   4  B.   &  Ad.   129;    Doe  v.     Ball,   11   M.    k 
W.  531. 

Where  in  an  administration  action  a  vfjluntary  deed 
was  held  *  void  as  against  creditors,  and  the  trustees  paid  [  *  350  ] 
the  whole  fund  (which  was  the  total  amount  of  the  as- 
Bets)  into  Court,  it  was  held  that  the  costs  of  the  action  were  pay- 
able out  of  such  part  of  the  fund  as  was  equal  to  the  amount  of  the 
debts,  and  that  the  balance  due  to  the  trustees  was  ])ayable  to  them: 
In  re  Turner's  Estate,  \V.  N.  10,  August,  1884,  p.  101. 

The  cases  as  to  the  effect  of  delay  on  proceedings  to  sot  aside  on 
equitable  grounds  a  deed  which  was  good  at  law,  do  not  apply  where 
there  is  a  legal  right  to  have  a  deed  set  aside  imder  13  Eliz.  c.  5, 
as  fraudulent  against  creditors:  In  re  Maddever,  Three  Toicns  Bank- 
ing Co.  V.  Maddecev,  A\'.  N.,  1884,  p.  178;  27  Ch.  D.  523. 

It  seems  that  in  order  to  enable  a  creditor  of  a  living  debtor  to 
set  aside  a  fraudulent  conveyance  under  the  13  Eliz.  c.  5,  it  is  not 
necessary  that  the  creditor  should  have  any  lien  or  charging  order 
on  the  property  comprised  in  the  conveyance,  but  in  the  absence  of 
such  lien,  the  Court  will  not  apply  the  property  in  satisfaction  of 
the  creditor's  claim:  Reese  Silver  Mining  Comx>any  v.  Ativell,  7  L. 
li.  Eq.  347.  [In  America  the  fraudulent  disposition  of  property  by 
a  debtor  during  his  life  may  be  impeached  after  his  death  by  any  of 
his  creditors:    Story's  Eq.  Juris.  Sec.  375,  370.] 

If  subsequently  to  the  execution  of  a  settlement  of  chattels  fraudu- 
lent against  creditors  the  settlor  mortgages  all  his  personal  estate, 
upon  the  settlement  being  declared  void,  the  chattels  therein  com- 
prised do  not  vest  in  the  mortgagee,  who  can  only  come  in  as  a 
general  creditor:  Barton  v.  Vanheythuysen,  11  Hare,  120;  Lister 
v.  Turner,  5  Hare,  281. 

The  statute  13  Eliz.  c.  5,  s.  3,  enacts  that  every  party  to  a  fraudu- 
lent conveyance  "  shall  incur  the  penalty  and  forfeiture  of  one 
year's  value  of  the  said  land,"  "  and  the  whole  of  the  value  of  the 
said  goods,"  and  "  also  being  thereof  lawfially  convicted,  shall  sufler 
imprisonment  for  one  half-year  without  bail  or  mainprise;"  and 
with  respect  to  this  enactment,  it  has  been  held  that  a  defendant 
may  refuse  to  answer  interrogatories  which  would  render  him  liable 
thereunder:   Wich  v.  Parker,  22  Beav.  59. 

In  the  recent  case,  however,  of  Bunn  v.  Bunn,  4De  G.  Jo.  &  Sm. 
310,  where  the  defendants  objected  to  make  the  usual  affidavit  as  to 
documents,  on  the  ground  that  the  discovery  would  expose  them  to 
pains  and  penalties  under  13  Eliz.  c.  5,  the  Lords  Justices  of  the 
Court  of  Appeal,  affirming  the  decision  of  Sir  John  Stuart,  Y.-C, 
held  that  the  discovery  must  be  made. 

There  is  a  similar  clause  in  27  Eliz.  c.  4.     See  sect.  3. 

Where  a  settlor  has  assigned  property  with  the  view  of  defeating 
his  creditors,  he  may,  upon  abandoning  such  an  intention  with  a 
view  of  carrying  out  an  arrangement  with  his  creditors,  recover 
such    property   from   the   assignee   who  has   given   no  considera- 

409 


*352  ELLISON  V.  ELLISON. 

[*  351]  tion  for  it:  Sy^nes  v.  *  Hughes,  9  L.  K.  Eq,  475,  479;  and 
seo  Taylor  v.  Boivers,  1  Q.  B.  D.  291.     See  and  consider 
Inre  Great  Berlin  Steamboat  Co.,  20  Ch.  D.  616. 

As  to  the  general  constraction  of  13  Eliz.  c.  5,  see  Twyne's  Case, 
3  Rep.  80  ;  1  Smith's  Leading  Cases,  1  and  note.  [This  statute 
was  passed  to  protect  the  rights  of  subsequent  purchasers.] 

The  Bankruptcy  Act,  1883  (46  &  47  Vict.  c.  52),  contains  clauses 
more  stringent  in  some  respects  as  against  voluntary  settlements  of 
property  than  the  statute  of  13  Eliz.  c.  5  ;  sect.  47  (1 )  enacts  that 
'•Any  settlement  of  property  not  being  a  settlement  made  before  and 
in  consideration  of  marriage,  or  made  in  favour  of  a  Y^urchaser  or 
incumbrancer  in  good  faith  and  for  valuable  consideration,  or  a 
settlement  made  on  or  for  the  wife  or  children  of  the  settlor  or  pro- 
perty which  has  accrued  to  the  settlor  after  marriage  in  right  of  his 
wife,  shall,  if  the  settlor  becomes  bankrupt  within  two  years  after 
the  date  of  the  settlement,  be  void  as  against  the  trustee  in  the 
bankruptcy,  and  shall,  if  the  settlor  becomes  bankrupt  at  any  sub- 
sequent time  within  ten  years  after  the  date  of  the  settlement,  be 
void  as  against  the  trustee  in  bankruptcy,  unless  the  parties  claim- 
ing under  the  settlement  can  prove  that  the  settlor  was  at  the  time 
of  making  the  settlement  able  to  pay  all  his  debts  without  the  aid 
of  the  property  comprised  in  the  settlement,  and  that  the  interest 
of  the  settlor  in  such  property  had  passed  to  the  trustee  of  such 
settlement  on  the  execution  thereof."  (2)  "Any  covenant  or  con- 
tract made  in  consideration  of  marriage,  for  the  future  settlement  on 
or  for  the  settlor's  wife  or  children,  of  any  money  or  property,  where- 
in he  had  not  at  the  date  of  his  marriage  any  estate  or  interest, 
whether  vested  or  contingent,  in  possession  or  remainder,  and  not 
being  money  or  property  of  or  in  right  of  his  wife,  shall,  on  his  be- 
coming bankrupt  before  the  property  or  money  has  been  actually 
transferred  or  paid  pursuant  to  the  contract  or  covenant,  be  void 
against  the  trustee  in  the  bankruptcy."  (4)  "  'Settlement '  shall 
for  the  purposes  of  this  section  include  any  conveyance  or  transfer 
of  property." 

This  section  is  somewhat  similar  to  section  126  of  the  Bankruptcy 
Act,  1849  (12  &  13  Vict.  c.  106),  repealed  by  the  Bankruptcy  Repeal 
Act,  1869  (32  &  33  Vict.  c.  38,  sees.  2—20),  and  to  sect.  91  of  the 
Bankruptcy  Act,  1869  (32  &  33  Vict.  c.  71),  except  that  the  latter 
section  was  restricted  to  cases  in  which  the  settlor  was  a  trader,  and 
the  words  "And  that  the  interest  of  the  settlor  in  such  property  had 
passed  to  the  trustee  of  the  settlement  on  the  execution  thereof  " 
are  now  introduced  for  the  first  time,  not  having  been  in  that 
section.  See  Yate  Lee  and  Wace  on  Bankruptcy,  p.  414, 
[  *  352  ]  2nd  ed.,  where  *  the  cases  on  these  sections  are  col- 
lected. 

It  was  held  that  the  91st  section  of  the  Bankruptcy  Act,  1869, 
applied  to  settlements  executed  before,  as  well  as  after,  the  Act  came 
into  operation:  Ex  parte  Daivson,  Re  Daicson,  19  L.  R.  Eq.  433. 
410 


ELLISON  V.  ELLISON.  *  353 

And  that  the  word  "purchaser"  meant  a  "buyer"  in  the  ordinary 
commercial  sense,  not  a  purchaser  in  the  lej^al  sense  of  tbo  word. 
Therefore,  the  trustee  of  a  postnuptial  settlement  of  leaseholds  fur 
the  benefit  of  the  settlor's  wife  and  childr(;n  is  not  a  purchaser  of 
the  property  for  valuable  consideraticni  within  the  meaning  of  sect. 
91.      See  Ex  j^urte  HilLman,  In  re  Buniifrey^  10  Ch.  D.  022. 

As  to  what  amounts  to  ability  to  pay  debts,  Bee  Ex  parte  Ittissell, 
Re  Butterworth,  ID  Ch.  D.  588. 

"Where  a  person  made  voluntary  settlement  of  a  mortgaged  estate, 
covenanting  with  the  trustees  of  the  settlement  to  ])ay  the  interest 
and  principal,  ho  was  considered  under  the  Dlst  section  of  the  Bank- 
ruptcy Act,  1809,  to  have  settled  not  merely  the  equity  of  redemp- 
tion, but  the  whole  property;  and  it  was  held  that  if  his  assets 
without  the  aid  of  such  property  were  insufficient  toj>ay  the  mort- 
gage debt  as  well  as  his  other  debts,  the  settlement,  although  made 
more  than  two  years  before  the  bankruptcy  of  the  settlor,  was  void: 
Ex  xjarte  Huxtable.  In  re  Conibeer,  2  Ch.  D.  54. 

The  sub-s.  2  of  section  47  of  the  Bankruptcy  Act,  1883,  does  not 
apply  to  a  covenant  for  the  payment  of  a  sum  of  money  not  specifi- 
cally ear-marked.  Thus,  where  a  trader  by  his  marriage  settlement 
covenanted  that  he  would  pay  OOOOZ.  to  the  trustees  on  or  before  a 
given  day,  to  be  held  by  them  on  the  trusts  of  the  settlement,  it  was 
held  by  the  Court  of  Appeal,  affii'ming  the  decision  of  Bacon,  Y.-C, 
that  the  trustees  were  entitled  to  prove  against  the  estate  of  the 
settlor  (who  had  gone  into  liquidation)  for  the  sum  of  GOOO?.,  less 
the  value  of  the  settlor's  life  interest  which  they  were  entitled  to 
retain:  Ex  parte  Bishop,  In  re  T&nnies,  8  L.  E.  Ch.  App.  718. 

As  to  fraudulent  preferences,  see  note  to  Ilarman  v.  Fishar,  Tud. 
Lead.  Cas.  on  Merc.  &  Mar.  Law,  p.  781,  3rd  ed. 

Non-interference  of  equity  against  bonti  fide  voluntary  instru- 
ment.]— A  voluntary  settlement,  though  void  as  against  creditors, 
subsists  for  all  other  purposes.  Suppose,  for  instance,  a  man  by  a 
voluntary  deed,  void  as  against  his  creditors,  conveys  real  estate  for 
the  benefit  of  his  wife  and  children,  and  afterwards  becomes  bank- 
rupt, any  surplus  of  the  estate  so  settled  will  be  bound  by  the 
trusts  of  the  settlement:  Ex  parte  Bell,  1  G.  &  J.  282  ; 
French  v.  French,  *  0  Do  G.  M.  &  G.  95.  See  Seton,  Dec,  [  *  353  ] 
1370,  Form  3,  4th  ed. 

So  in  Smith  v.  CherriU,  4  L.  R.  Eq.  390,  a  hidy  being  indebted  to 
the  plaintiff  at  the  time  of  her  marriage  in  the  sum  of  350/.,  set- 
tled all  her  real  and  personal  property,  (with  the  exception  of  jewels 
and  furniture,  exceeding  in  vahie  the  amount  of  her  debt,)  upon 
faihire  of  issue  of  the  marriage,  in  favour  of  certain  collateral  rela- 
tives, including  a  niece  whom  she  had  adopted  as  her  daughter. 
The  lady  survived  her  hiisband,  and  died  without  issue,  leaving  no 
assets.  It  was  held  by  Sir  R.  Malins,  V.-C,  first  that  the  consider- 
ation of  marriage  not  extending  to  collaterals,  the  ulterior  limita- 

411 


*  354*  ELLISON  V.  ELLISON. 

tions  to  them  upon  the  authority  of  Johnson  v.  Legard,  3  Madd. 
283;  and  Cotterell  v.  Homer,  13  Sim.  506,  were  voluntary.  Sec- 
ondly, that  so  far  only  as  the  sum  of  350/.  was  concerned,  the  settle- 
ment was  void,  and  ought  to  be  set  aside,  and  the  debt  being  a 
charge  upon  her  property,  ought,  if  necessary,  to  be  raised  with  in- 
terest. 

A  Court  of  equity  will  not  set  aside  a  voluntary  deed  or  agree- 
ment not  obtained  by  fraud,  by  mistake,  or  against  public  policy, 
even  if  it  be  such  as,  according  to  the  principles  before  laid  down, 
it  will  not  carry  into  effect.  Equity  stands  neutral,  and  invariably 
follows  the  rule  thus  quaintly  laid  down  in  an  old  case,  "  that  if  a 
man  will  improvidently  bind  himself  up  by  a  voluntary  deed,  and 
not  reserve  a  liberty  to  himself  by  a  power  of  revocation,  a  Court 
of  Equity  will  not  loose  the  fetters  he  hath  put  upon  himself,  but  he 
must  lie  down  under  his  own  folly  : "  Villers  v.  Beaumont,  1  Vern. 
101  ;  Bill  V.  Cureton.  2  My.  &  K.  503;  Petre  v.  Espinasse,  2  My. 
&  K.  496;  Page  v.  Home,  9  Beav.  570;  11  Beav.  227;  McDonnell 
V.  Hesilrige,  16  Beav.  346;  De  Houghton  v.  Money,  1  L.  B.  Eq.  154; 
35  Beav.  98;  2  L.  K.  Ch.  164. 

And  the  rule  is  the  same  whether  the  interference  of  equity  is  in- 
voked by  the  settlor  himself,  or  through  the  medium  of  a  person, 
not  a  purchaser  for  value,  claiming  only  through  the  settlor  :  Dol- 
phin V.  Aylward,  6  L.  R.  Ho.  Lo.  486. 

As  we  have  before  seen,  a  deed  for  valuable  consideration  not 
carrying  out  the  intention  of  the  parties  may  be  so  modified  and 
rectified  as  to  carry  them  out.  (See  note  to  Lord  Glenorchyv.  Bos- 
ville,  ante,  p.  51.)  But  in  the  case  of  a  voluntary  executory  gift  this 
is  impossible.  The  instrument  is  either  good  or  bad  ;  it  cannot  be 
modified  to  suit  former  intentions,  unless  the  donor  consent  to  make 
a  new  and  distinct  instrument  :  Phillipso^i  v.  Kerry,  32  Beav.  628, 
638.  Secus  it  seems,  if  the  trust  be  executed  {Thompson  v.  Whit- 
more,  1  J.  &  H.  268);  James  v.  Couchman,  29  Ch.  D.  212;  or 
if  it  be  shown  clearly  after  the  settlor's  death  that  the 
[  *  354  ]  *  instrument  was  not  prepared  as  he  intended  :  Lister  v. 
Hodgson,  4  L.  R.  Eq.  30,  34. 

A  person  who  receives  a  gift  takes  it  subject  to  the  conditions  im- 
posed by  the  donor.  (Seale  v.  Hayne,  12  W.  R.  (V.-C.  S.)  239.) 
And  also  subject  to  any  mortgage  of  the  subject-matter  thereof  by 
the  donor,  and  he  will  not  be  able  to  call  upon  the  personal  repre- 
sentative of  the  donor  to  indemnify  him  therefrom,  although  the 
latter  may  have  covenanted  to  pay  the  mortgage  debt:  Oiven  v. 
Braddell,  7  I.  R.  Eq.  358. 

[Doctrine  of  Voluntary  Trusts  Restated. — A  man  may  transfer  his 
property  without  valuable  consideration  in  one  of  two  ways,  he  may 
either  do  such  acts  as  amounts  in  law  to  a  conveyance  or  assign- 
ment of  the  property  and  thus  completely  divest  himself  of  the 
legal  ownership  ;  or,  the  legal  bwner  of  the  property  may,  by  one 
412 


ELLISON  V.  ELLISON.  *  354 

or  other  modes  recognised  as  amounting  lo  a  valid  d(>claration  of 
trust,  constitute  himself  a  trustee,  without  an  actual  transfer  of  the 
legal  title,  and  may  deal  with  the  property  as  to  deprive  himself  of 
its  beneficial  ownership. 

A  voluntary  supplement,  if  perfected,  will  be  enforced  by  the 
court,  yet  if  there  is  anything  to  be  done  in  order  to  give  effect  to 
it  the  court  will  not  interfere.  Almost  any  consideration  will  be 
sufficient  to  induce  the  court  not  to  treat  the  settlement  as  volun- 
tary. Whether  the  trust  has  been  perfectly  created  or  not,  is,  in 
each  case,  a  question  of  fact,  and  the  court  in  determining  that 
question  will  give  effect  to  the  situation  of  the  parties  also  the  ob- 
ject the  settlor  had  in  making  the  settlement. 

The  use  of  the  words '"  trust  "  and  "trustee"  will  not  necessarily 
create  a  trust,  but  the  absence  of  them  from  the  instrument  is  an 
item  to  be  taken  into  account. 

It  will  bo  remembered  even  at  law,  a  voluntary  instrument  al- 
though executory  in  its  character,  will  be  supported  as  a  gift  of  the 
money  if  it  be  under  seal,  because  a  seal  will  import  a  consideration. 

Blackstone,  says  "  A  true  and  proi:»er  gift  is  always  accompanied 
by  delivery  of  possession  and  takes  effect  immediately.  But  if  a 
gift  does  not  take  effect  by  delivery  of  immediate  possession  it  is 
not  then  properly  a  gift,  but  a  contract." 

The  common  law  rule  regarding  the  transfer  of  legal  titles  has 
been  followed  inequity  as  regards  the  transfer  of  equitable  estates, 
and  trusts  that  are  purely  voluntary  must  to  be  effectually  created, 
be  accompanied  by  the  delivery  of  the  subject  of  the  trust,  or  by 
some  act  which  so  strongly  indicates  the  donor's  intention  as  to  be 
tantamount  to  such  delivery.  An  imperfect  voluntary  conveyance 
will  not  be  enforced  in  equity.  The  settlement  must  take  effect  in 
the  mode  intended  by  the  settlor. 

In  order  to  render  a  voluntary  gift  or  settlement  valid,  there 
must  be  what  amounts  to  either  (1),  a  complete  transfer  of  the 
property  beneficially,  or  in  trust,  or  (2),  a  valid  declaration  of  trust. 


413 


>56  MACKRETH  V.  SIMMONS. 


[  *  355  ]  *  MACKRETH  ^.  SYMMONS. 


May  13t7i,  IWi,  Nov.  2Uh,  1808. 
[eepokted  15  VES.  329.] 

Vendor's  Lien  foe  unpaid  Purchase -money.] — Vendor's  lien  for 
purchase-money,  unpaid,  against  the  vendee,  volunteers,  and  pur- 
chasers with  notice,  or  having  equitable  interests  only,  claiming 
under  him,  unless  clearly  relinquished,  of  which  another  security 
taken  and  relied  on  may  be  evidence,  according  to  the  circum- 
stances, the  nature  of  the  security,  &c. :  the  proof  being  upon  the 
purchaser;  and,  failing  in  2oart  upon  the  circumstances,  another 
security  being  relied  on  may  prevail  as  to  the  residue. 

As  to  marshalling  the  assets  of  the  vendee  by  throiving  the  lien  upon 
the  estate,  qucere. 

The  bill  stated,  that,  in  the  years  1783  and  1784,  the  plaintifP  was 
indebted  to  John  Manners  in  several  sums,  amounting  in  the  whole 
to  13,500Z. ;  for  which  sums  John  Martindale,  as  surety,  joined  the 
plaintiff  in  bonds.  In  1790,  Martindale,  having  upon  a  settlemeut 
of  accounts  with  the  plaintiff  in  1785,  taken  credit  for  payment  to 
Manners  of  3000Z.,  undertook  to  discharge  the  remaining  10,500Z. ; 
and  they  settled  an  account  accordingly.  Other  accounts  were  after- 
wards settled  between  them — the  last  in  February,  1792;  upon 
which  a  balance  of  54,000Z.  was  due  to  Martindale,  including  10,393Z. 
17s.,  the  value  of  annuities  granted  by  the  plaintiff;  against  which 
Martindale  agreed  to  indemnify  the  plaintiff,  in  consideration  of 
the  plaintiff's  agreeing  to  pay  him  the  amount.  A  bond  for  20,000Z. 
was  given  accordingly ;  and  a  mortgage  in  fee  was  executed  by 
the  plaintiff  to  Martindale  for  the  balance  of  54,000Z. 

By  indentures  of  lease  and  release,  dated  the  30th  and 

[  *  356  ]  *  31st    of   October,  1793,  reciting  an   agi-eement  by  the 

plaintiff  to  sell  the  reversion  of  the   mortgaged   estates  to 

Martindale,  which  was  valued  at  60,000Z.,  composed  of  the  principal 

and  interest  due  upon  the  mortgage,  those  estates  were  conveyed 

414 


MACIvRKTIl  V.  SYM.MONS.  ■••' o5T 

to  Henry  Martindalo  and  his  heirs,  to  tho  uso  of  the  plaintifT"  for 
life,  with  remainder  to  John  Martindale  in  fee. 

The  bill  farther  stated,  that  John  Martindale  did  not,  accordiiKj 
to  his  undertaking,  ji^V  ^^^^  *""^  ^f  13,5(J(J/.  to  Manners,  nor  the 
value  of  the  annuities ;  which  sums  constituted  part  of  tho  consid- 
eration for  his  purchase  of  tho  reversion  of  the  estate.  In  Septem-' 
ber,  1797,  a  commission  of  bankruptcy  issued  against  him,  under 
which  Manners'  representatives  proved  the  debt  upon  the  bonds, 
and  received  dividends;  the  plaintiff  being  ol^liged  to  pay  the  re- 
mainder of  the  debt  on  account  of  those  bonds,  being  14,128Z.  3.s.  0(i., 
besides  costs,  and  several  sums  on  account  of  the  annuities. 

John  Martindale,  before  his  bankruptcy,  had  contracted  to  exe- 
cute a  mortgage  to  the' defendant  of  the  reversion  comprised  in  the 
indentures  of  1793;  and  the  plaintiff,  claiming  a  lien  upon  the  es- 
tate for  the  payments  he  had  made  in  consequence  of  Marti ndale's 
failure  to  fulfil  his  engagements,  gave  notice  to  the  assignees  under 
the  commission.  In  1798,  Symons  obtained  a  decree,  that  the  as- 
signees should  execute  a  mortgage  of  the  reversion  to  hira,  expressly 
without  prejudice  to  the  plaintiff's  claim;  and  afterwards  filed  a  bill 
of  foreclosure  against  the  assignees,  and  obtained  a  decree;  Mack- 
reth  not  being  a  party  to  that  suit.  The  legal  estate  teas  rested  in 
Coutts,  as  a  trustee,  under  a  conveyance  by  Mackreth  and  Martin- 
dale in  1793,  to  secure  annuities  of  2000Z. 

The  bill,  filed  by  Mackreth,  prayed  a  declaration,  that  the  plain- 
tiff has  a  lien  upon  the  reversion  of  the  estates,  sold  to  Martindale 
and  mortgaged  to  Symmons,  for  the  payments  he  had  been  obliged 
to  make,  and  those  sums  which  he  may  hereafter  pay  in  respect  of 
annuities,  &c. 

The  defendant  Symmons,  by  his  answer,  denied  that  he 
had  any  notice,  prior  to  his  entering  into  the  *  agreement  [  *  357  ] 
with  Martindale,  that  the  plaintiff  had  not  received  full 
consideration;  and  submitted  that  he  had  no  lien. 

Sir  Samuel  Romilly  and  Mr.  Wriottesley,  for  tho  plaintiff. — The 
equitable  lien  of  a  vendor  upon  the  estate  sold  for  the  purchase- 
money,  as  against  the  vendee,  and  even  though  a  bond  was  taken,  is 
established  by  a  great  number  of  cases,  from  Chapman  v.  Tanner  (k), 
to  Nairn  v.  Prowse  {I).     In  Austen  v.  Halseij(m),  your  Lordship 


[k]  1  Vern.  207. 

il)  6  Yes.  7r)2. 

(m)  6  Ves.  475;  see  483. 

416 


*  358  MACKRETII  V.  SYMMONS. 

considered  it  as  clearly  settled,  except  where  xipon  the  contract  evi. 
dently  the  lien  by  implication  was  not  intended  and  the  case  of 
Hughes  v.  Kearney  (n)  is  another  direct  authority;  Lord  Redesdale 
laying  down,  as  a  very  clear  rule,  that  in  all  cjises  the  vendor  has 
the  lien,  and  that  it  lies  upon  the  purchaser  to  show  a  special  agree- 
"ment  excluding  it;  that  case  being  decided  upon  that  ground.  It 
cannot  be  admitted,  certainly,  against  a  purchaser  for  a  valuable 
consideration  without  notice;  but  this  defendant  has  not  that  char- 
acter, having  merely  an  equitable  agreement  for  a  security,  not  per- 
formed, when  Martindale  became  a  banki'upt,  the  plaintiff  giving 
notice  to  the  assignees,  and  the  decree,  obtained  by  the  defendant 
Symmons,  for  a  mortgage  to  him,  expressing,  that  it  was  without 
prejudice  to  the  claim  of  this  plaintiff.  Certainly,  a  former  debt  is 
sufficient  to  sustain  a  purchase  as  for  a  valuable  consideration;  but 
it  is  necessary  that  a  party  taking  a  conveyance  for  such  a  consider- 
ation should  not  have  had  notice  of  the  claim  when  he  took  the  con- 
veyance. There  are  but  two  periods  to  which  the  point  of  notice  can 
apply:  first,  the  time  when  the  consideration  was  advanced;  secondly, 
when  the  conveyance  was  executed;  and,  even  where  a  consideration 
has  actually  passed,  it  is  necessary  to  state,  in  pleading,  that  there 
was  no  notice  at  either  period,  otherwise  the  purchaser  cannot  pro- 
tect himself;  Wigg  v.  Wigg  (o).  In  this  case  it  is  essential  that 
there  should  not  have  been  notice  at  the  later  period,  before  which 
rotice  is  clearly  established.  The  estate  was  never  properly  out  of 
the  hands  of  the  plaintiff.  He  had  not  taken  a  security 
[  *  358]  carved  out  by  *  himself,  which  might  preclude  the  equit- 
able lien  he  once  had,  which  therefore  still  remains.  From 
the  nature  of  this  transaction,  the  consideration  being  a  former  debt 
no  money  actually  passing,  no  such  hardship  can  arise  from  enforc- 
ing the  lien,  as  in  the  case  of  a  purchaser  for  valuable  consideration 
actually  paid  in  that  transaction  who  is  affected  by  notice. 

If,  however,  this  defendant  is  to  be  considered  as  a  purchaser  for 
valuable  consideration  without  notice,  so  that  the  lien  cannot  prevail 
against  him,  the  plaintiff  is  entitled  to  consider  him  only  as  a  mort- 
gagee, having  contracted  with  Martindale,  as  against  whom  the  lien 
is  good,  for  a  mortgage.  This  plaintiff  therefore,  cannot  be  affected 
by  the  decree  for  a  foreclosure  obtained  bv  this  defendant,  who,  hav- 
ing notice  of  the  plaintiff's  claim,  did  not  make  him  a  party. 

(n)  1  S.  &  L.  132. 
(o)  1  Atk.  382. 

416 


MACKRETII  V.  SYMMOXS.  *  ?,')^ 

Mr.  Richards,  Mr.  Alexander,  and  Mr.  William  Agar,  for  Lbo  de- 
fendant.— There  is  nothing  in  the  circumstanceH  of  this  case  depriv- 
ing this  defendant  of  the  protection  duo  to  a  purchaser  for  vahiahhi 
consideration  without  notice,  his  transaction  with  Martindalo  being 
perfectly  fair;  the  vendor  claiming  a  preference  by  way  of  lien  for 
the  purchase-money  remaining  unpaid,  as  an  equitable  charge,  prior 
in  time,  though  he  took  the  security  of  Martindalo  to  that  e.\tent 
Under  such  circumstances  the  lien  has  never  been  e8tal)lished;  nor 
can  the  inference  necessary  to  maintain  it  bo  collected,  either  upon 
principle  or  authority.  The  general  case  of  lien  as  between  vendor 
and  vendee,  is  admitted,  where  there  is  no  special  agreement,  no 
security  taken  in  respect  of  the  purchase-money;  but  this  equity  has 
not  been  carried  beyond  that  simple  case  of  vendor  and  vendee.  In 
the  case  of  Chapman  v.  Tanner  (p),  there  was  a  special  agreement: 
the  title-deeds  were  kept  by  the  vendor,  a  deposit  of  the  title-deeds 
of  itself  amounting  to  an  equitable  charge.  Other  cases,  besides 
those  which  have  been  mentioned,  in  which  this  point  arose,  either 
directly  or  incidentally,  are  Bond  v.  Kent  (q) — the  case  of  a  mortgage 
of  the  purchased  estate  for  part  of  the  money,  and  a  note 
for  a  remainder;  Pollexfen  v.  Moore  (r) — a  *very  perplexed  [  *  359  ] 
case,  often  cited;  Fawellx.  Hcelis  (s);  Blackburn  v.  Greg - 
son  (t) — which  is  merely  the  opinion  of  Lord  Loughborough,  who 
desired  to  have  the  point  further  considered;  Trimmer  v.  Bayne  (u). 
The  result  of  all  of  them  is,  that,  where  a  security  is  given,  there  is 
no  place  for  this  equity,  the  purchaser  certainly  having  to  show  that 
it  does  not  exist.  Hfere,  a  bond  was  given  by  Martindale:  the  secur- 
ity stipulated  between  the  parties;  and,  therefore,  the  lien,  sub 
stituted  by  equity,  where  there  is  no  stipulation  for  a  particular 
security,  cannot  be  raised. 

Sir  Samuel  Romilly,  in  reply. — The  plaintiff  being  called  upon, 
and  obliged  to  pay  the  debt,  against  which  Martindale  undertook  to 
indemnify  him,  that  undertaking  forming  the  consideration  of 
Martindale's  purchase,  he  cannot,  upon  the  ground  of  fraud,  be  per- 
mitted to  retain  the  estate.  The  lien,  therefore,  is  clear  in  respect 
of  the  10,500Z.     The  distinction  as  to  the  annuities  rests  upon  the 

(p)  1  Vern.  267. 

{q)  2  Vern.  281. 

(r)  3  Atk.  272. 

(s)  Arab.  724,   1  Bvo.  C.  C.  422,  n.  3rd  ed.;  2  Dick.  485. 

{t)  1  Bro.  C.  C.  420. 

(w)  9  Ves.  209. 

27  WHITE  ON    EQUITY.  417 


*360  MACKRETH  I).  SUMMONS. 

single  circumstance,  that  a  security  by  a  bond  of  indemnity  was 
taken,  which  is  confined  to  the  annuities.  If  this  plaintiff  had  filed 
a  bill  against  Martindale  while  in  possession,  he  would  have  been 
compelled  to  pay  the  annuities  out  of  the  purchased  estate,  and  a 
receiver  would  have  been  appointed.  No  stronger  instance  of  bad 
faith,  no  act  more  unconscientious,  can  be  stated,  than  taking  an 
estate  in  consideration  of  making  payments,  and,  by  a  direct  viola- 
tion of  the  contract,  permitting  those  payments  to  fall  upon  the 
vendor. 

As  to  this  defendant,  if,  from  the  passage,  appearing  in  the  report 
of  Pollexfen  v.  Moore,  it  is  supposed  that  the  lien  cannot  be  extended 
to  a  purchaser  from  the  original  vendee,  it  would  be  perfectly  in- 
effectual ;  but  that  proposition  is  contradicted  by  many  authorities. 
In  Walker  v.  Preswick  (u)  it  is  distinctly  laid  down,  that  the  lien 
prevails  against  a  purchaser,  with  notice.  Upon  what  principal  can 
such  a  distinction  between  this  and  any  other  equity  be  maintained? 
The  point  is  expressly  decided  in  the  same  way  in  Gibbons  v.  Bad- 
dall  (v),  viz.,  if  A.  sells  an  estate,  taking  a  promissory  note  for  part 
of  the  purchase-money,  and  then  the  purchaser  sells  to  B., 
[  *  360  ]  who  has  notice  *  that  A.  had  not  received  all  the  money, 
the  land  is  in  equity  chargeable  with  the  money  due  on 
the  note.  The  defendant  cannot  be  represented  as  a  purchaser 
without  notice,  merely  as  not  having  notice  when  he  advanced  his 
money.  It  is  true,  not  then  having  this  estate  in  contemplation,  he 
could  not  have  notice  at  that  time;  but,  to  sustain  a  purchase  as  for 
valuable  consideration  without  notice,  it  is  essential  that  there  should 
not  have  been  notice  either  when  the  money  was  advanced,  or  when 
the  conveyance  was  executed.  That  doctrine  has  been  always  held 
from  the  earliest  period,  in  More  v.  Mayhow  (w),  to  the  time  of  Lord 
Hardwicke,  in  W^igg  v.  Wigg  (x);  and  the  reason  is,  that  some 
suspicion  arises  from  not  taking  the  legal  estate,  when  the  money 
is  advanced.  The  defendant,  having  the  means,  by  acquiring  the 
legal  estate,  of  placing  himself  in  a  situation,  in  which  the  want  of 
notice  would  avail,  merely  took  an  agreement;  and,  having  only  an 
equitable  title,  cannot  maintain  the  plea  of  purchaser  for  valuable 
consideration  without  notice.     The  doctrine  that  certainly  prevails 


(u)  2  Ves.  622. 
{v)  2  Eq.  Ca.  Abr.  682,  n. 
(w)  1  Ch.  Ca.  34. 

(x)  1  Atk.  3rt2;    Tourville  v.  Naish,  3  P.  Wms.  307,  where  the  notice  "was 
before  paj'tuent  of  the  money. 
418 


MACKRETU  U.  SYMMONS.  *  IMII 

between  mortgagees,  that,  the  equities  being  equal,  a  snVjBcquent 
mortgagee,  having  got  in  the  legal  estate,  may  exclude  a  prior  in- 
cumbrance, applies  only  where  the  money  was  advanced  u[)on  the 
credit  of  the  estate  ;  not  where  the  estate  was  not  in  contemplation, 
and  other  securities  were  looked  to,  which  is  the  case  of  this  de- 
fendant, when  he  advanced  his  money  ;  and  upon  that  ground  a 
judgment  creditor,  taking  in  a  prior  mortgage,  cannot  tack  (jj). 

[The  Lord  Chancellor  (Eldon). — With  regard  to  the  doctrine  to 
which  you  are  now  alluding,  is  there  any  case  where  a  third  mort- 
gagee has  excluded  the  second,  if  the  first  mortgagee,  when  he  con- 
veyed to  the  third,  knew  of  the  second  ?  AN'hen  the  case  of  Manndrell 
V.  Maundrell  {z)  was  before  me,  I  looked  for,  but  could  not  find,  such 
a  case — that,  where  there  was  bad  faith  on  the  part  of  the  first 
mortgagee,  that  equity  was  applied  (a).] 

Sir  Samuel  Romilly,  in  reply. — I  do  not  believe  that  was  ever 
decided;  and  there  Avonld  be  great  difiicnlty  it  deciding  it 
in  favour  of  the  third  mortgagee,  who  puts  *  himself  in  [  *  301  ] 
I  he  place  of  the  first.  The  result  of  the  authorities,  and 
of  the  circumstances  to  which  they  are  to  bo  applied,  is,  that  a  part 
of  the  money,  which  was  the  consideration  of  the  original  purchase, 
remaining  unpaid,  the  Court  will  raise  the  lien,  and  will  enforce  it 
against  a  second  purchaser  with  notice;  that  universally  the  time  of 
the  conveyance,  as  well  as  the  time  of  the  advance,  is  material  with 
regard  to  notice;  and  that  this  defendant  clearly  had  notice  before 
the  conveyance. 

Lord  Chancellor  Eldon.— Upon  the  special  circumstances  of 
this  case  I  shall  postpone  my  judgment;  I  should  be  very  unwilling 
to  leave  some  of  the  doctrine,  that  has  been  brought  into  con- 
troversy, with  as  much  doubt  upon  it,  as  would  be  the  consequence 
of  deferring  the  judgment  without  taking  some  notice  of  it. 

The  settled  doctrine,  notwithstanding  the  case  of  Fan-ell  v.  Hee- 
lis  (6),  is,  that  unless  there  are  circumstances  such  as  we  have  been 
reasoning  upon,  ichere  the  vendor  conreys,  icUhout  more,  though  the 
consideration  is  upon  the  face  of  the  instilment  expressed  to  be  ]iaid, 
and  by  a  receipt  indorsed  iipon  the  back,  if  it  is  the  simple  case  of  a 

((/)  Brace  v.  Duchess  of  Marlborough,  2  P.  "Wnis.  491. 

(z)  10  Ves.  2-l(i. 

(n)  See  Peacock  r.  Burt,  Coote,  Mort.  693,  where  a  lliird  niortjrafree  without 
notice,  taking  a -transfer  from  the  first  mortgagee  \\ho  had  notice  of  the 
second  v,-as  wrt  affected  by  it. 

{b)  Amb.  7J4;  1  Bro.  C.  C.  422,  n.  3rd  edit:  2  Dick.  485. 

419 


*362  MACKKETII  V.  SYMMONS. 

conveyance,  the  money,  or  part  of  it,  not  being  paid,  as  between  the 
vendor  and  the  vendee,  and  persons  claiming  as  volunteers,  upon  the 
doctrine  of  this  Court,  ivhich,  ivhenit  is  settled,  has  the  effect  of  con- 
tract, though  x>erhaps  no  actual  contract  has  taken  place,  a  lien  shall 
prevail;  in  the  one  case,  for  the  ichole  consideration ;  in  the  other, 
for  that  part  of  the  money  ivhich  ivas  not  paid.  I  take  that  to  have 
been  the  settled  doctrine  at  the  time  of  the  decision  of  Blackburn 
V.  Oregson  (c),  which  case  so  far  shook  the  authority  of  Fawell  v. 
Heelis  as  to  relieve  me  from  any  apprehension,  that  Lord  BathxirsVs 
doctrine  can  be  considered  as  affording  the  rule  to  be  applied  as 
between  the  vendor  and  vendee  themselves,  and  persons  claiming 
under  them. 

There  is  a  case.  Smith  v.  Hibbard   (d),  reported   nowhere  but   in 

Dickens,  which  seems  to  decide  this  point.  There  is  also 
[  *  362  ]   another  case,  beside  those  which  have  been  *  mentioned, 

showing  the  opinion  of  Lord  Hardivicke,  that  the  lien  pre- 
vails: Harrison  v.  Soidhcote  (e),  the  case  of  a  Papist  vendor,  for 
whom,  Lord  Hardwicke  says,  the  lien  would  not  be  raised,  as  that 
would  be  giving  an  interest  in  land  to  a  Papist;  the  specialty  of  that 
proving,  that  the  lien  prevails  in  general  cases.  In  the  case  of  Elliot 
V.  Edwards  (/),  Lord  Alvanley  was  very  strong  upon  it.  There  was 
a  covenant  for  payment  of  the  money  upon  the  first  purchase,  and 
also  an  undertaking  by  a  surety — strong  circumstances  to  show, 
that,  as  between  the  vendor  and  vendee,  there  is  no  intention  to  rely 
upon  the  lien.  The  point  was  not  decided  in  that  case;  but  Lord 
Alvanley  lays  down  the  doctrine  as  I  have  stated  it,  that  even  in  the 
hands  of  another  person,  with  notice,  the  lien  remains.  In  Gibbons 
V.  Baddall  (g),  the  lien  was  held  to  be  clear  against  a  second  pur- 
chaser, with  notice.  There  is  a  very  old  case  in  Gary  (h),  which  I 
have  heard  cited  as  one  of  this  class;  but  I  have  some  doubt 
whether  it  is  not  a  case  of  equitable  interposition  upon  another 
ground.  The  circumstance  leading  me  to  that  doubt  is,  that  there 
was  a  lost  bond;  and  the  modern  doctrine  of  dispensing  with 
]n-ofert  (i),  was  not  at  that  time  known.  The  Lord  Chancellor 
might,  therefore,  consider  himself  as  having  jurisdiction   in  that 

(c)  1  Bro.  C.  C.  420. 

(d)  2  Dick.  730. 

(p)  2  Ves.  389;  see  393. 

(/)  3  B.  &  P.  181;  see  183, 

(g)  2  Eq.  Ca.  Abr.  682,  n. 

(h)  Hearle  v.  Botelers,  Gary,  35. 

(i)  Profert  dispensed  with  where  a  bond  is  lost;  see  5  Ves.  238,  n.  2nd  edit. 

420 


MACKHETII  V.  SYMMON8.  *  8(!3 

case  to  direct  payment  of  the  money  due  upon  that  bond  out  of  the 
estate.  In  Aiistin  v.  Halsey  (j ),  what  I  stated  ui)on  this  subject 
was  not  said  without  much  consideration.  I  had  not  ac  that  time, 
nor  have  I  now,  the  least  doubt  that  it  is  the  doctrine. 

I  have  some  doubt  upon  another  point:  takiuf^  the  vendor  to  have 
the  lien,  whether  the  Court  will,  in  case  of  the  death  of  the  vendee, 
marshal  the  assets,  so  as  to  throw  the  lien  upon  the  purchased  es- 
tate. It  has  often  been  said,  and  the  case  of  Copjjin  v.  Coppin  (k), 
stated  as  an  authority,  that  the  Court  will  not  do  that.  IHie  Lord 
Chancellor,  in  his  judgment,  takes  no  notice  of  that  point.  In  that 
case  the  vendor  happened  to  be  the  heir  of  the  vendee,  so  that  that 
the  ep-tate  was  at  home;  and  it  was  held,  that,  being  also  the  execu- 
tor, he  was  entitled  to  retain  the  purchase-money  out  of  the 
personal  assets.  That  *  decision  requires  a  good  deal  of  [  *  363  ] 
consideration.  If  the  estate  had  been  in  a  third  person, 
the  general  doctrine,  as  to  a  person  having  two  funds  to  resort  to, 
might  be  thought  to  have  an  immediate  application:  and  the  ex- 
press terms  of  the  decree  in  Pollexfen  v.  Moore  (I)  might  be  found 
very  inconsistent  with  it. 

It  is  not,  however,  necessary  to  decide  that  point;  as  this  is  an 
equity,  that  in  ordinary  cases  will  effect  a  purchaser.  Upon  prin- 
ciple, without  authority,  I  cannot  doubt  that  it  goes  upon  this, 
that  a  person  having  got  the  estate  of  another,  sJiall  not,  as  between 
them,  keep  it,  and  not  pay  the  consideration ;  and  there  is  no  doubt 
that  a  third  person,  having  full  knowledge  that  the  other  got  the 
estate  williout  payment,  cannot  maintain,  that  though  a  Court  of 
equity  will  not  permit  him  to  keep  it,  he  may  give  it  to  another  per- 
son without  payment.  It  is  not,  however,  necessary  to  discuss  that 
upon  general  principles,  as  it  has  been  repeatedly  stated  by  authori- 
ties that  ought,  at  this  time,  to  bind  upon  that  point. 

Another  principle,  as  matter  of  general  law,  is  involved  in  this 
case;  what  shall  be  sufficient  to  make  a  case  in  which  the  lien  can 
be  said  not  to  exist.  It  has  always  struck  me,  considering  this  sub- 
ject, that  it  would  have  been  better  at  once  to  have  held  that  the 
lien  should  exist  in  no  case,  and  the  vendor  should  suffer  the  con- 
sequences of  his  want  of  caution;  or  to  have  laid  down  the  rule  the 

( ;■ )  6  Ves.  475. 

(it)  2  P.  Wms.  291 ;  Scl.  Ca.  Ch.  28.  See,  however.  Trimiuor  r.  liayne,  9 
Ves.  209;  Spronle  v.  Trior,  8  Sim.  189;  Selby  v.  Selby,  4  Kuss.  3:!(i:  Wythe  r. 
Hen  nicker.  2  My.  &  K.  635. 

(Z)  3  Atk.  272. 

421 


*  364  MACKRETH  V.  SYMMONS. 

other  way  so  distinctly,  that  a  purchaser  might  be  able  to  know, 
without  the  judgment  of  a  court,  in  what  cases  it  would,  and  in 
what  it  would  not  exist.  Lord  Bathiirst  seems  to  have  thought  a 
note  would  j^ut  an  end  to  it.  Other  judges,  of  very  high  au- 
thority, dissented  from  that;  as  appears  by  the  cases  of  Gibbons  v. 
Baddall  {m)  and  Hughes  v.  Kearney  (n).  It  does  not  necessarily 
follow  from  a  written  contract,  giving  another  remedy ,  that  the  lien 
was  not  intended  to  exist.  It  is  very  difficult,  then,  to  distinguish 
the  case  where  a  note  or  bond  is  given  for  part  of  the  money.  In 
the  case  of  Bond  v.  Kent  (o)  where  the  estate  sold  was  mortgaged 

for  part  of  the  money,  and  a  note  taken  for  the  rest,  there 
[  *  364  ]  was  strong  ^negative  evidence,  that  the  vendor  was  not 

intended  to  be  a  mortgagee  for  the  rest.  The  case  put  by 
the  Master  of  the  Rolls,  in  Nairn  \.  Prowse  (p)  of  a  mortgage  upon 
another  estate,  also  aiforded  strong,  perhaps  not  quite  conclusive, 
evidence  against  the  lien,  considering  the  value  of  the  mortgaged 
estate — in  general  much  more  than  the  amount  of  the  money.  It 
does  not,  however,  appear  to  me  a  violent  conclusion,  as  between 
vendor  and  vendee,  tnat,  notwithstanding  a  mortgage,  the  l?en 
should  subsist.  The  principle  had  been  carried  this  length:  that 
the  lien  exists,  unless  an  intention,  and  a  manifest  intention,  that  it 
shall  not  exist  ajjpears. 

This  case  remains  to  be  considered  upon  its  own  circumstances 
with  reference  to  the  points  I  have  stated.  The  questions  are,  first, 
supposing  the  lien  would  have  existed  as  to  the  gross  sum,  the  debt 
to  Manners  and  the  annuities,  or  their  value,  whether  tlie  circum- 
stances of  silence  as  to  the  debt,  and  the  indemnity  taken  against 
thft  annuities,  which  is  very  important,  amount  in  equity  to  evi- 
dence of  a  manifest  intention  to  abandon  the  lien;  if  they  do,  an- 
other very  considerable  point  is,  whether,  the  lien  having  been 
abandoned,  the  plaintifP  can  set  himself  up  as  a  mortgagee,  claim- 
ing to  redeem  the  defendant.  If  the  lien  is  to  be  considered  as  not 
abandoned,  the  question  will  be,  not  whether  a  purchaser,  with  no- 
tice, would  be  afPected  by  the  lien — which  as  general  doctrine,  I 
admit, — but  whether,  under  the  circumstances  attending  the  con- 
tract with,  and  convevance  to,  this  defendant,  it  shall  prevail  against 


(m)  2  Eo.  Ca.  Abr.  682,  u. 

(n)  1  S.  &L.  132. 

io)  2  Vern.  281. 

{p)  6  Ves.  752;  see  760. ' 

422 


MACKRFTII  V.  SYMMONS.  *  3G5 

him.     Upon  the  particular  circumstances,  tbo  caso  must  stand  for 
judgment, 

(js)  Lord  Chancellor  Eldon,  having  stated  the  case  very  particu- 
larly, and  observing  that  the  legal  estate  in  tbo  premises  was,  before 
the  assignees  of  Martindale  executed  the  agreement  for  a  mortgage 
to  Symmons,  vested,  under  a  former  conveyance  by  Mackretb,  in  a 
trustee  to  secure  annuities  granted  by  him,  pronounced  the  follow- 
ing judgment. 

This  case,  when  it  was  argued,  and  since,  has  appeared 
*to  me  to  involveaquestionof  very  great  importance,  with  [  *3G5] 
regard  to  which  I  am  not  able  to  find  any  rule  which  is 
satisfactory  to  my  mind.  If  I  had  found,  laid  down  in  distinct  and 
inflexible  terms,  that,  where  the  vendor  of  an  estate  takes  a  security 
for  the  consideration,  he  has  no  lien,  that  would  be  satisfactory ; 
as,  when  a  rule,  so  plain,  is  once  communicated,  the  vendor,  not 
taking  an  adequate  security,  loses  the  lien  by  his  own  fault.  If,  on 
the  other  hand,  a  rule  has  prevailed,  as  it  seems  to  be,  that  it  is  to 
depend,  not  upon  the  circumstances  of  taking  a  security,  but  upon 
the  nature  of  the  security,  as  amounting  to  evidence,  as  it  is  some- 
times called,  or  to  declaration  plain,  or  manifest  intention,  the  ex- 
pressions used  upon  other  occasions,  of  a  purpose  to  rely,  not  any 
longer  upon  the  estate,  but  upon  the  personal  credit  of  the  indi- 
vidual, it  is  obvious'that  a  vendor,  taking  a  security,  unless  by  ev- 
idence, manifest  intention,  or  declaration  plain,  he  shows  his  pur- 
pose, cannot  know  the  situation  in  which  he  stands,  without  the 
judgment  of  a  court,  how  far  that  security  does  contain  the  evi- 
dence, manifest  intention,  or  declaration  plain,  upon  that  point. 
That  observation  is  justified  by  a  review  of  the  authorities:  from 
which  it  is  clear  that  different  judges  would  have  determined  the 
same  case  differently;  and,  if  some  of  the  cases  that  have  been  de- 
termined had  come  before  me,  I  should  not  have  been  satisfiex^l  that 
the  conclusion  was  right. 

This  bill  insists  upon  a  lion  in  respect  of  these  annuities;  to  be 
paid  all  that  the  plaintiff  himself  has  paid:  and  either  as  to  the 
original  value,  or  the  present  vahie,  or  the  future  payments.  I 
state  that  claim  in  these  different  terms,  as,  to  determine  what  is 
the  lien,  it  is  necessary  to  point  out  the  amount  of  it,  and  how  it  is 
to  be  calculated.     Some  doubt  was  thrown  in  the  argument  upon 

{p)  Nov.  26tb,  1808. 

423 


*366  MACKRETU  ^•.  SYMMONS. 

the  question  of  lien  between  the  vendor  and  vendee;  but  it  was  not 
carried  far;  and  it  is  too  late  to  raise  a  doubt  upon  it:  but  it  is  in- 
sisted, that  the  lien  does  not  prevail  against  third  persons,  even  with 
notice  of  the  situation  of  the  vendor  and  vendee.  It  may  be  of  use 
to  state  the  cases  upon  this  subject  in  the  order  of  time. 
[  *  366  ]  *The  earliest  case,  not  very  applicable,  is  in  Gary  (p), 
and  most  of  the  Abridgements,  which  imperfectly  collect 
the  authorities  upon  this  head.  According  to  my  own  under- 
standing, that  case  is  to  be  classed  rather  among  those  of  relief  in 
equity  upon  a  security  that  has  been  lost,  than  under  this  head: 
but  the  fact  of  its  existence  is  a  circumstance  of  evidence  that  this 
doctrine  has  obtained  in  professional  practice.  There  is  no  other 
case  between  that  and  Chajmian  v.  Tanner  (q),  which  is  very  imper- 
fectly reported;  and  its  authority  is  weakened  by  the  observation 
in  subsequent  cases,  that  there  was  a  special  agreement  that  the 
vendor  should  keep  the  writings;  and  it  is  stated  as  a  fact,  that  he 
had  not  taken  any  security.  Taking  it  to  be  a  decision  in  favour 
of  the  lien  under  those  circumstances,  the  declaration  of  the  Court, 
which  was  the  natural  equity,  shows  strongly  how  the  law  upon  this 
subject  was  understood;  and  that  case,  therefore,  has  considerable 
weight.  The  doctrine  is  probably  derived  from  the  civil  law  as  to 
goods,  which  goes  further  than  our  law,  by  which,  though  the  right 
of  stopping  in  transitu  is  founded  upon  natural  justice  and  equity, 
yet  if  possession,  either  actual  or  constructive,  was  taken  by  the 
vendee,  the  lien  is  gone.  That  is  not  so  by  the  civil  law.  The 
digest  states  states  (r) :  '*Quod  vendidi  non  alitor  fit  accipientis 
quam  si  aut  pretium  nobis  sclutum  sit,  aut  satis  eo  nomine  factum, 
vel  etiam  fidem  habuerimus  emptor!  sine  ulla  satisfactione;"  which 
points  at  this  article  of  security;  but  with  those  excepted  cases, the 
lien,  according  to  the  civil  law,  is  so  strong,  that  the  goods  may  be 
taken  out  of  the  possession  of  the  individual  who  had  obtained 
actual  or  constructive  possession  of  them. 

The  next  case  is  Bond  v.  Kent  (s),  the  circumstances  of  which 

{}))  HearletJ.  Botelers,  Gary,  35.  Relief  in  equity  upon  a  security  lost.  See 
5  Ves.  238,  n. 

(q)  1  Vern.  267.  Vendor's  lien  probably  derived  from  the  Civil  Law  as  to 
goods;  which  goes  further  than  the  law  of  England;  by  which  the  lien,  giving 
the  right  to  stop  in  transitu,  is  gone,  where  possession,  actual  or  constructive, 
has  been  taken;  the  lien  by  civil  law  prevailing  even  against  actual  posses- 
sion. 

(r)  Dig.  lib.  18  tit.  1,  1.  ll;  Inst.  lib.  2,  tit.  2,  §  41. 

(«)  2  Vern.  281. 

424 


MACKIIETII  V.  SYMMONS.  *  367 

are  special — a  mortgage  for  part  of  the  money,  and  a  note  for  tbo 
residue.  It  was  urged  with  considerable,  perhaps  not  conclusive, 
weight,  that  the  express  charge  of  a  part  gave  a  ground  for  the  in- 
ference, that  a  lien  for  the  residue  was  not  intended.  The  case, 
however,  goes  to  prove,  that,  in  equity,  this  li(;n  was  sup- 
posed to  exist;  *  amounting  to  an  admission,  that,  with-  [  *  3G7  ] 
out  those  special  circumstances,  there  would  have  been 
a  lien. 

The  next  case  is  Coppin  v.  Coppin  (t),  where  the  doctrine  of 
Pollexfen  v.  Moore  (it),  as  to  marshalling,  was  practically,  though 
I  doubt  whether  it  ought  to  have  been,  admitted.  I  should  men- 
tion Gibbons  v.  Baddall  {v),  where  it  is  expressly  stated,  that  the 
lien  remained,  though  a  note  was  given  for  part  of  the  purchase- 
money;  but  I  cannot  ascertain  the  date  of  that  decision.  In  Pollexfen 
v.  Moore,  Lord  Hardwicke  affirms  the  lien  of  the  vendor  upon  the 
estate  for  the  remainder  of  the  purchase-money,  considering  the 
vendee  from  the  time  of  the  agreement  a  trustee  as  to  the  money 
for  the  vendor;  but  adds,  that  ''this  equity  will  not  extend  to  a 
third  person." 

If  that  is  to  be  understood,  that  this  equity  would  not  extend  to 
a  third  person,  who  had  notice  that  the  money  was  not  paid.  Lord 
Hardwicke' s  subsequent  decisions  contradict  that :  if  the  meaning 
is,  that  he  would  follow  the  case  of  Coppin  v.  Coppin,  and  that,  if 
the  vendor  exhausted  the  personal  assets,  the  legatee  of  the  pur- 
chaser should  not  come  upon  the  estate,  there  is  great  difficulty  in 
applying  the  pi'inciplo  ;  as  it  would  then  be  in  the  power  of  the 
vendor  to  administer  the  assets  as  he  pleases,  having  a  lien  upon 
the  real  estate  to  exhaust  the  personal  assets,  and  disapppoint  all 
the  creditors,  who,  if  he  had  resorted  to  his  lien,  would  have  been 
satisfied;  and  in  that  respect,  with  reference  to  the  principle,  the 
case  is  anomalous. 

The  next  case  in  which  the  doctrine  was  admitted  is  Harrison  v. 
Southcote  (iv),  followed  by  Walker  v.  Preswick  (x);  which  case,  it 
is  remarkable,  was  not  cited  in  Fawell  v.  Heelis  (y):  and  in  Bui'gess 
V.  Wheat 0   (z),  Sir   Thomas  Clarke  lays  down  the  rule,  Loth  as  to 

{t)  2  P.  WnTs.  291. 
{u)  n  Atk.  272. 
(r)  2  Eq.  Ca.  Abr.  (5S2,  n. 

(iv)  2  Ves.  :}89;  see  :WA.  (x)  2  Ves.  G22. 

{y)   Amb,  724;  1  Bro.  C.  C.  422.  n.,  ;^rd  edit.;  2  Dick.  48r,. 
(z)  1  Black.  123;  see  150.   Lieu  of  vendee,  haviug  paid  pi t-malurely  analogous 
to  that  of  vendor. 

425 


*  368  MACKRETH  V.  SYMMONS. 

vendor  and  vendee,  thus: — "Where conve}  ance  is  made  prematurely^ 
before  money  paid,  the  money  is  considered  as  a  lien  on  that  estate 
in  the  hands  of  the  vendee.  So,  where  money  was  paid  prematurely, 
the  money  would  be  considered  as  a  lien  on  the  estate  in  the  hands 
of  the  vendor  for  the  personal  representative  of  the  pur- 
[  *  368  ]  chaser."  Tardiffe  v.  *  Scrughan  (a)  is  very  material  upon 
this  point,  as  it  is  represented  (5)  as  a  case  in  which  the 
lien  was  held  to  attach  upon  the  two  moieties  of  the  estate;  but  it 
has  been  also  considered  (c)  a  case,  whether  of  lien  upon  the  land 
or  not,  for  contribution  upon  the  circumstances  between  the  sisters: 
giving  the  one  sister  a  right  to  call  upon  the  husband  of  the  other 
to  pay  a  moiety  of  the  annuity.  In  another  case,  also,  Powell  v. 
,  whether  accurate  or  not  I  cannot  trace  Lord  Camden  de- 
termined in  favour  of  the  lien. 

In  Faivell  v.  Heelis  {d),  Lord  Bathursfs  opinion  certainly  was, 
for  reasons  best  stated  in  the  case  of  Nairn  v.  Proivse  (e)  by  Sir 
Samuel  Romilly,  that  the  bonds  takep  by  the  vendor  furnished  evi- 
dence, that  credit  was  not  given  to  the  land ;  and  therefore  there 
was  no  lien.  In  Beckett  v.  Cordley  (/),  Lord  Thurloiv  says,  it  was 
compared  to  a  person  selling  an  estate,  and  not  receiving  the  money; 
and,  therefore,  there  is  a  lien:  asserting  the  general  doctrine  as 
familiar,  but  distinguishing  that  case  upon  the  nature  of  the  trans- 
action: younger  children  joining  the  eldest  in  a  mortgage;  discharg- 
ing the  estate  from  their  portions;  and  by  their  consent  the  whole 
money  being  paid  to  the  eldest  son:  the  lien  being  discharged  by 
that  transaction. 

In  the  argument  of  Blackburn  v.  Gregson  (g),  Lord  Kenyon  took 
the  doctrine  to  be  perfectly  clear;  and  it  is  not  possible  to  state  a 
stronger  judicial  opinion  than  Lord  Loughborough  expressed,  that 
the  lien  does  exist,  though  it  is  not  a  decision.  In  Smith  v. 
Hibberd  (h),  it  was  insisted  that  the  delivery  of  possession,  upon 
payment  of  a  small  part  of  the  money,  was  evidence  that  he  meant 
to  trust  to  the  personal  security;  but  it  was  held  clear,  that  the  money 
contracted  to  be  paid  was  a  specific  lien  upon  the  premises.     The 


{a)  Cited  Amb.  725;  1  Bro.  C.  C.  423. 

(6)  1  Bro.  C.  C.  423,  in  Blackburn  v.  Gregson. 

(c)  Amb.  720,  in  Fawell  r.  Heelis. 

(d)  Amb.  724;  1  Bro.  C.  C.  422,  n.  Srd  edit.;  2  Dick.  485. 

(e)  6  Ves.  752. 

(/)  1  Bro.  C.  C.  353;  see  358. 
(g)  1  Bro.  C.  C.  420. 
(h)  2  Dick.  730. 

426 


MACKRETII  V.  SYMMONS.  *  3G9 

contract  for  paj^ent  of  tbo  money  Ih  itself,  in  a  sense,  a  secarity 
full  as  good  as  a  note.  I  do  not  state,  as  an  authority,  what  appears 
upon  this  subject  iu  Austen  v.  Halseij  (i),  as  it  is  a  more  dictum, 
and  a  dictum  that  fell  from  mo;  but  endeavouring  to  state  this 
doctrine  as  accurately  as  I  ccMld,  I  see  I  expressed  it  in 
*  these  words  {k):  "That  the  vendor  has  alien  for  the  [*  309  ] 
purchase-money,  while  the  estate  is  in  the  hands  of  the 
vendee.  I  except  the  case  where  upon  the  contract  evidently  that 
lien  by  implication  was  not  intended  to  be  reserved." 

In  the  case  of  ElUoit  v.  Edivards  ( /),  this  is  the  doctrine  of  Lord 
Alvanley,a  very  experienced  judge  in  equity,  with  reference  to 
whom  I  may  say,  his  judgments  will  be  read  and  valued  as  pro- 
ducing great  information  and  instruction  to  those  who  may  practise 
in  Courts  of  equity  in  future  times.  He  there  states,  that,  if  a  man 
having  purchased  an  estate,  conveys  it  before  the  purchase-money 
has  been  paid,  a  Court  of  equity  will  compel  the  person  to  whom 
the  estate  was  conveyed  to  pay  that  money,  provided  he  knew  at  the 
time  he  took  the  conveyance  that  it  had  not  been  paid. 

The  next  case  in  equity  is  Nairn  v.  Proivse  (m),  before  the  Master 
of  the  Rolls,  in  which  it  was  contended  that  there  was  no  li'en;  the 
vendor  had  taken  a  security  for  the  money,  payable  at  a  future 
time,  and  during  the  interval  the  vendee  might  have  sold  the  stock. 
The  Master  of  the  Rolls,  in  his  judgment,  admitting  the  general 
doctrine  as  to  the  vendor's  lien,  observes  upon  the  question,  whether 
a  security  taken  will  be  a  waiver,  that  by  conveying  the  estate  with- 
out payment  a  degree  of  credit  is  given  to  the  vendee,  w^hich  may 
be  given  upon  the  confidence  of  the  existence  of  such  lien;  and 
it  may  be  argued,  that  taking  a  note  or  a  bond  cannot  materially 
vary  the  case;  a  credit  is  still  given  to  him,  and  may  be  given  from 
the  same  motive,  not  to  supersede  the  lien,  but  for  the  purpose  of 
ascertaining  the  debt,  and  countervailing  the  receipt  indorsed  upon 
the  conveyance.  There  is  great  difficulty  to  conceive  how  it  should 
have  been  reasoned,  almost  in  any  case,  that  the  circumstance  of 
taking  a  security  was  evidence  that  the  lien  was  given  up,  as  in  most 
cases  there  is  a  contract  under  seal  for  payment  of  the  money. 
The  Master  of  the  Rolls,  having  before  observed  that  there  mav 
be  a  security,  which  will   have   the  eifect  of  a  waiver,  proceeds 

(i)  (j  VesT^Ts!  "      ^^ 

{k)  6  Ves.  483. 
(/)  -AB.  &P.  181;  see  183. 
(m)  6  Ves.  752, 

427 


*  371  MACKRETH  V.  SYMMONS. 

[  *  370  ]  to  express  his  *  opinion,  that,  if  the  security  be  totally  dis- 
tinct and  independent,  it  will  then  become  a  case  of  substi- 
tution for  the  lien,  instead  of  a  credit  given  on  account  of  the  lien; 
meaning  that,  not  a  security,  but  the  nature  of  the  security,  may 
amount  to  satisfactory  evidnce  that  a  lien  was  not  intended  to  be 
observed,  and  puts  the  case  of  a  mortgage  of  another  estate,  or 
any  other  pledge,  as  evidence  of  an  intention  that  the  estate  sold 
shall  remain  free  and  unencumbered.  It  must  not,  however,  be 
understood  that  a  mortgage  taken  is  to  be  considered  as  a  conclu- 
sive ground  for  the  inference  that  a  lien  was  not  intended,  as  I 
could  put  many  instances  that  a  mortgage  of  another  estate  for  the 
purchase-money  would  not  be  decisive  evidence  of  an  intention  to 
give  up  the  lien,  though,  in  the  ordinary  case,  a  man  has  always 
greater  security  for  his  money  upon  a  mortgage  than  value  for  his 
money  upon  a  purchase;  and  the  question  must  be,  whether,  under 
the  circumstances  of  that  particular  case,  attending  to  the  worth  of 
that  very  mortgage,  the  inference  arises.  In  the  instance  of  a  pledge 
of  stock,  does  it  necessarily  follow  that  the  vendor,  consulting  the 
convenience  of  the  purchaser  by  permitting  him  to  have  the  chance 
of  the  benefit,  therefore  gives  up  the  lien  which  he  has  ?  Under 
all  the  circumstances  of  that  case  the  judgment  of  the  Master  of  the 
Rolls  was  satisfied  that  the  conclusion  did  follow;  but  the  doc- 
trine as  to  taking  a  mortgage,  or  a  pledge,  would  be  carried  too  far 
if  it  is  understood,  as  applicable  to  all  cases,  that  a  man  taking  one 
pledge  therefore  necessarily  gives  up  another;  which  must,  I  think, 
be  laid  down  upon  the  circumstances  of  each  case,  rather  than  uni- 
versally. In  the  case  Hughes  v.  Kearney  (n)  Lord  Redesdale  states 
the  doctrine,  and  the  proposition  is,  not  merely  that  the  vendor 
might  have  security,  but  that  he  relied  upon  it;  and  a  note  or  bills 
are  considered  not  as  a  security,  but  as  a  mode  of  payment. 

From  all  these  authorities  the  inference  is,  first,  that  generally 
speaking,  there  is  such  a  lien;  secondly,  that  in  those  gen- 
[  *  371  ]  eral  cases  in  tvhich  there  would  he  the  lien,  as  *  between 
vendor  and  vendee,  the  vendor  will  have  the  lien  against  a 
third  person,  who  had  notice  that  the  money  was  not  iDaid.  Those 
two  points  seem  to  be  clearly  settled.  I  do  not  hesitate  to  say, 
that,  if  I  had  found  no  authority  that  the  lien  would  attach  upon  a 
third  person,  having  notice,  I  should  have  had  no  difficulty  in  deciding 
that  upon  principle,  as  I  cannot  perceive  the  diflPerence  between  this 

(n)  1  S.  &  L.  132. 
428 


ma('Krf:tii  v.  symmoxs.  *  372 

species  of  lien  and  other  equities,  by  which  third  persons,  having 
notice,  are  bound.  In  the  case  of  a  conveyance  to  B.,  the  money 
being  paid  by  A.,  B.  is  a  trustee;  and  C.  taking  from  him,  and  hav- 
ing notice  of  the  payment  by  A.,  would  also  be  a  trustee,  and  many 
other  instances  may  be  put. 

The  more  modern  authorities  upon  this  subject  have  brought  it  to 
this  inconvenient  state — that  the  question  is  not  a  dry  question  upon 
the  fact,  whether  a  security  was  taken,  but  it  depends  upon  the  cir- 
cumstances of  each  case  whether  the  Court  is  to  infer  that  the  lion 
was  intended  to  be  reserved,  or  that  credit  was  givdn,  and  exclusively 
given,  to  the  person  from  whom  the  other  security  was  taken  (o). 

In  this  case,  having,  as  other  judges  have  had,  to  determine  this 
question  of  intention  upon  circumstances,  I  may  mistake  the  fair  re. 
suit  of  the  circumstances  which  I  have  endeavored  to  collect.  I  must 
say  I  have  felt  from  the  first,  that  there  is,  upon  the  part  of  the  plain- 
tifi",  that  natural  justice  and  equity,  which  excite  a  wish,  that  I  could 
enforce  a  lien  throughout;  but,  first,  as  to  the  annuities,  I  am  per- 
suaded that,  with  reference  to  that  part  of  the  case  involving  the 
question  of  lien  as  to  the  consideration,  or  any  part  of  it,  or  any  sum 
of  money,  the  quantum  of  which  is  to  be  estimated  with  reference 
to  the  present  value,  or  the  past  or  future  payments,  this  is  a  case 
in  which  the  plaintiff  intended  to  rely  entirely  upon  the  personal 
security,  the  bond  for  20,000Z. ;  and  that  was  the  conception  of  Mar- 
tindale  also;  by  whose  default  of  payment,  therefore,  the  estate  is  not 
now  subject  to  the  lien  in  respect  of  the  consideration  of  the  an- 
nuities, or  of  any  allowance  in  respect  of  it  (p).  See  how 
*  it  stands.  In  1790,  the  plaintiff,  as  principal,  and  Martin-  [  *  372] 
dale,  as  surety,  being  engaged  in  an  obligation,  which  I 
understand  to  be  a  personal  one,  for  these  annuities,  agree  to  change 
situations;  Martindale  to  be  the  principal,  and  the  plaintiff  to  be 
surety;  in  consideration  of  which  the  plaintiff  agrees  to  give  9000Z. 
secured  by  a  mortgage.  It  rests  upon  that  until  1793,  when  the 
transaction  takes  this  course:  that  Martindale  shall  be  no  longer  a 
mortgagee,  but  owner  of  the  reversion  in  fee,  and,  which  is  material, 
of  the  reversion  expectant  upon  the  plaintiff's  life  estate.     The  an- 

(o)  Where  a  security  is  taken  for  unpaid  purchase-money,  the  existence  of  the 
lien  depends  upon  the  question,  whether  it  Avas  intended  to  he  reserved  or 
whether  credit  was  exclusively  given  to  the  person  from  whom  the  security  was 
taken. 

(jo)  As  to  the  annuities,  the  plaintiff  intended  to  rely  entirely  upon  the  personal 
security. 

429 


*  373  MACKRETII  V.  SYMMONS. 

nuities  remain  upon  the  old  footing;  that  is,  some  payments  were 
made,  or  arrears  accrued,  between  1792  and  1793,  and  payments 
were  to  arise  from  time  to  time.  The  value  given  to  Martindale,  in 
1792,  by  the  mortgage  of  9000/.,  for  taking  the  liability  upon  him- 
self, was  a  value  which  merely,  by  the  lapse  of  time,  between  1792 
and  1793,  must  have  varied.  If  the  annuities  had  been  paid  there 
must  have  been  a  difference  in  the  estimation;  also  de  anno  in  an- 
num, the  value  was  decreasing,  not  only  as  the  annuities  were  wear- 
ing out,  but  also  as  the  number  of  the  annuitants  were  decreasing  by 
death.  It  is  -impossible,  it  is  not  natural,  to  suppose,  that  parties 
dealing  for  the  consideration  of  annuities,  and  the  purchase  of  a  re- 
version, which  might  not  take  effect  in  possession  until  all  the  an- 
nuitants were  dead,  relied  on  that  reversion  as  security,  in  addition 
to  the  indemnity  by  a  bond  for  20,000Z. ;  in  the  original  transaction 
the  state  being  pledged  for  the  sum  of  9000Z.,  as  if  actually  paid. 

Then,  as  to  the  lien,  for  what  is  it?  Is  it  for  the  original  sum? 
That  it  cannot  in  justice  be.  Is  it  for  future  payments — that,  one 
sum  being  paid,  it  does  not  attach  ?  another  sum  not  being  paid 
it  does  attach?  a  chai'ge  upon  the  reversion  arising  from  time  to 
time,  accordingly  as  these  payments  are,  or  are  not,  made?  And  is 
that  inference  to  be  drawn  where  a  conveyance  was  executed  with- 
out the  least  notice  of  such  an  intention — a  security  taken,  not  of 
itself  sufficient  to  exclude  the  purpose  of  such  a  lien? 
[*373]  but  the  nature  of  the  subject,  connected  *  with  the  fact 
of  that  security  taken,  is  decisive  proof  against  such  an 
intention;  and  it  appears  accordingly  in  the  other  cause,  Sym- 
mons  V.  Rankin,  that  Mackreth  and  Martindale  joined  in  the  convey- 
ance to  Coutts,  to  secure  an  annuity  of  2000/.,  without  the  least  refer- 
ence to  such  an  intention. 

I  admit,  that  the  opinion  of  Lord  Loughborough  (o),  that  the 
case,  before  Lord  Camden,  (p)  went  upon  the  ground  of  lien,  is  an 
authority  very  considerably  against  my  opinion;  and  I  cannot  say 
upon  what  the  case  did  proceed,  if  not  upon  that  ground;  as  the 
estate,  given  by  the  wife  to  her  husband  for  his  life,  after  her  own 
death,  if  not  affected  by  the  lien,  could  not  be  bound  to  pay  the 
annuity.  If  that  case  is  accurately  represented,  Lord  Camden'' s 
opinion  seems  to  have  been  that  the  mere  circumstance  of  an  estate 
given  in  consideration  of  an  annuity,  with  a  bond,  would  not  pre- 

(o)  See  Blackburn  v.  Greson,  1  Bro.  C.  C.  420. 
Ip)  Tardiffe  ?•.  Scrughan,  stated  1  Bro.  C.  C.  423. 

430 


MACKllKTII  V.  SYMMOXS.  *  374 

vent  the  lion  attaching  from  time  to  time;  and  so,  understanding  it, 
I  cannot  bring  my  mind  to  the  conclusion  that  it  is  an  authority 
which  ought  to  lead  me  to  determine,  that,  with  reference  to  these 
annuities,  there  is  a  lien,  either  for  the  original  value,  the  present 
value,  or  the  future  payment,  which  may  or  may  not  become  due. 

(j>)  As  to  the  other  part  of  the  case,  I  have  considered  long,  whether 
the  conclusion  is  just,  that,  not  meaning  to  have  a  lien,  as  I  think 
this  party  did  not,  with  regard  to  the  annuities,  he  should  mean  to 
have  a  lien  as  to  the  sum  of  money  due  to  Manners.  My  individual 
opinion  is  that  the  intention  was  the  same  as  to  both;  but,  with  re- 
gard to  the  latter,  the  cases  authorize  the  lien ;  unless  it  is  destroyed 
by  particular  circumstances,  which  do  not  exist  hei-e.  That  sum  is 
precisely  in  the  condition  of  a  part  of  the  consideration,  not  paid; 
and  then  the  inference  in  equity,  unless  there  are  strong  circum- 
stances, getting  over  it,  is,  that  a  lien  was  intended.  This  comes 
very  near  the  doctrine  of  Sir  Tliomas  Clark  (q),  which  is  very 
sensible;  that,  where  the  conveyance,  or  the  payment,  has  been 
made  by  surprise,  there  shall  be  a  lien.  This  plaintiff 
understood  at  the  time  of  the  *  conveyance,  that  this  [  *  374  ] 
money  was  to  be  paid  on  his  account  to  Manners;  which  is 
the  same  as  if  it  was  to  have  been  paid  to  himself,  and  was  not 
paid;  and  then  the  only  question  is,  whether,  as,  from  the  special 
circumstances  as  to  the  value  and  nature  of  the  annuities,  I  am  to 
infer  that  a  lien  was  not  intended  as  to  them,  I  must  make  the  same 
inference  with  respect  to  this  gross  sum;  as  to  which,  if  the  an- 
nuities were  not  mixed  with  the  transaction,  the  doctrine  of  equity 
is,  that  the  lien  would  attach.  As  to  that  sum,  my  judgement  is,  that 
the  plaintiff  has  a  lien. 

It  is  contented,  that  there  are  other  circumstances  in  this  case; 
that  the  defendant,  Symmons,  has  a  conveyance  of  the  estate  with- 
out notice,  or,  rather,  a  contract;  as  he  had  notice  at  the  time  of 
the  conveyance.  It  is  not  necessary  to  go  into  the  doctrine  as  to 
the  effect  of  notice  at  the  time  of  the  contract,  or  at  the  time  of  pay- 
ment of  the  money;  though  there  is  no  doubt  the  defendant  when 
he  took  his  conveyance,  had  notice  from  the  recitals  in  his  title-deed 
of  Mackreth's  rights  and  Marti ndale's  obligations,  as  vendor  and 
vendee.     Neither  is   it  neccessary  to  go  into  the   consideration  of 

(p)  Althoii<ih  no  lien  as  to  the  annuities,  lien  as  to  the  gross  sums  unpaid  by 
vendee  was  intended. 

(2)  Burgess  r.  Wheate,  1  W.  Black.  150. 

431 


*  375  MACKRETII  V.  SYMMONS. 

another  argumeni ;  that  the  defendant's  money  was  not  originally 
lent  upon  the  faith  of  the  land.  There  is  a  great  difference  be- 
tween the  effect  of  a  judgment  as,  attaching  upon  the  land,  and  a 
special  agreement  by  a  creditor  for  a  security  upon  the  land.  It  is 
not,  however,  necessary  to  determine  such  questions;  as  neither  the 
plaintiff  nor  the  defendant  Symmons  has  the  legal  estate,  which  ap- 
pears in  the  other  cause,  Symmons  v.  Rankin,  to  be  in  Coatts,  un- 
der the  conveyance  of  1793,  in  which  Martindale  and  Mackreth 
joined;  and  then  between  equities  and  the  rule  "  Qui  prior  est 
tempore  potior  est  jure,''''  applies. 

The  result  of  this  case  is,  that  the  bill  must  be  dismissed  as  it 
regards  the  annuities,  and  is  right  as  to  the  other  part  of  the  claim; 
and,  being  right  in  one  point,  and  wrong  in  the  other,  the  decree 
must  be  without  costs,  {r). 

This  case  was  mentioned  by  way  of  motion  to  vary  the  minutes, 
upon  a  misunderstanding  as  to  the  costs. 

[*375]       *  Lord  Chancellor  Eldon,  having  repeated   the  ground 
upon  which  no  costs  were  given,  made  the  following  addi- 
tional observations: — 

Since  the  judgment  was  pronounced,  I  have  met  with  a  case 
which  was  not  cited  in  the  argument,  but  is  referred  to  in  Mr.  Sug- 
den's  work  (s),  which  seems  to  me  to  be  a  book  of  considerable 
merit  {t)  in  which  this  subject  is  considered  with  much  attention, 
and  he  comes  to  a  conclusion  different  from  mine.  I  looked  into 
the  Registrar's  Book  for  that  case,  the  name  of  which  I  do  not  re- 
collect; and  it  does  seem  to  me  that  his  inference  is  not  the  neces- 
sary inference,  arising  from  the  circumstances  of  that  case,  as  I  find 
it  in  the  Registrar's  Book.  I  mention  this,  to  show  that  I  have  not 
withdrawn  from  the  opinion  I  have  expressed  upon  this  subject;  as 
to  which,  conceiving  it  to  be  of  great  importance,  I  should,  if  con- 
vinced, be  very  ready  to  retract;  but,  having  endeavoured  to  collect 
all  the  doctrine  of  the  Court  upon  it,  I  am  sure  I  am  right  in  that. 
I  wish  I  was  as  sure  in  the  application  of  the  evidence. 

(?•)  This  rule  only  applies  -when  the  equities  are  equal.  See  Rice  v.  Rice,  2 
Drew.  1. 

(s)  The  case  alluded  toby  the  Lord  Chancellor  appears  to  be  Comer  v.  Walk- 
ley,  stated  356,  2nd  edi.;  465,  866,  11th  edit.,  Sugd.  V.  &  P. 

{t)  The  work  on  Vendors  and  Purchasers,  the  14th  edition  of  which  ap- 
peared in  the  year  1862. 


432 


MACKRETIl  V.  SYMMONS.  *  375 

In  the  important  and  loading  case  of  Mackreth  v.  Symmons,  Lord 
Eldon,  in  his  eiaborato  and  learned  judgment,  very  fully  examines 
the  authorities  upon  the  doctrine  of  the  vendor's  erpiitable  lien  for 
the  unpaid  purchase-money  of  land.  The  doctrine  itself,  which  at 
the  present  day  is  seldom,  if  ever,  brought  into  dis[)ute,  is  thus 
stated  by  Lord  Ekion  in  the  principal  case:-  "Where,"  observes 
his  Lordship,  "the  vendor  conveys,  without  more,  though  the  con- 
sideration is  upon  the  face  of  the  instrument  expressed  to^be  paid, 
and  by  a  receipt  indorsed  upon  the  l)ack,  if  it  is  the  simple  case  of 
a  conveyance,  the  money,  or  part  of  it,  not  being  paid,  as  between 
the  vendor  and  the  vendee,  and  persons  claiming  as  volunteers,  upon 
the  doctrine  of  the  Court  of  Equity,  which,  when  it  is  settled,  has 
the  effect  of  a  contract,  though  perhaps  no  actual  contract  has 
taken  place,  a  lien  shall  prevail;  in  the  one  case,  for  the  whole  con- 
sideration; in  the  other,  for  that  part  of  the  money  which  was  not 
paid."  See  also  Chapman  v.  Tanner,  1  Vern.  207;  Austen  \.  Hal- 
sey,  6  Ves.  475.  [In  the  United  States  the  decisions  on  this,  subject 
have  not  been  uniform,  in  the  Federal  Courts,  and  the  courts  of  the 
following  States  the  doctrine  of  a  vendor's  lien  have  been  adopted: 
Mississippi,  Alabama,  Georgia,  Tennessee,  New  Jersey,  New  York, 
Florida,  Texas,  Arkansas,  Oregon,  Illinois,  California,  Ohio,  Ken- 
tucky, Wisconsin,  Indiana,  Minnesota,  Missouri,  Michigan  and 
Colorado:  See  Pearson  v.  David,  la.  23;  McAlpine  v.  Burnett,  28 
Texas,  049;  McLaurie  v  Thomas,  39  III.  291;  Dennis  v.  "Williams, 
40  Ala.  033;  Carrico  v.  Farmers'  Bank,  33  Md.  235;  Armstrong  v. 
Ross,  5  C.  E.  Green,  109;  Tobey  v.  McAllister,  9  Wis.  403;  Sears 
V.  Smith,  2  Mich.  243;  Truebody  v.  Jacobson,  2  Cal.  209;  Marks  v. 
Barker,  20  Fla.  920;  Anketel  v.  Converse,  17  Ohio,  11;  Waddell  v. 
Cartock,  41  Ark.  523;  Dougherty  v.  Paine.  0  Min.  443;  Francis  v. 
Wells,  2  Col.  000;  Still  v.  Mayor,  27  Ga.  502;  Ellis  v.  Temple,  4 
Cold.  315;  Garson  v.  Green,  1  Johns.  Ch.  308;  Haley  v.  Bennett,  5 
Port.  452;  Burrus  v.  Roulhac,  2  Bush,  39. 

In  the  following  States  the  doctrine  has  been  repudiated:  Penn- 
sylvania, Maine,  Massachusetts,  Kansas,  North  and  South  Carolina: 
Heist  V.  Baker,  13  W^rigbt  (Pa.),  9;  Irvine  v.  Campbell,  0  Binn.  118; 
Philbrook  v.  Delano,  29  Me.  410;  Simpson  v.  Mundee,  3  Kansas, 
174;  Wragg  v.  Comp.  Gen,,  2  Dessaus.  509;  Crawley  v.  Timberlake, 
1  Led.  Eq.  340;  Wynne  v.  Alson,  1  Dev.  Eq.  103,' and  Ahrend  v. 
Odiore,  118,  Mass.  201,  for  opinion  of  Ch.  J.  Gray,  for  an  examina- 
tion of  the  origin  of  this  lien. 

In  West  Virginia,  Virginia  and  Vermont,  the  lien  is  abolished 
by  statute.  In  Connecticut,  New  Hampshire  and  Delaware,  the 
question  is  undecided:  Chapman  v.  Beardslev,  31  Conn.  1  15:  Budd 
V.  Busti,  1  Harr.  (Del.)  09;  Arlin  v.  Brown,'44  N.  H.  102. 

As  before  stated,  the  Federal  Courts  acknowledge  the  doctrine: 
McLearn  v.  McLellan,  10  Peters,  040;  Bavley  t\  Greenleaf,  7  Wheat, 
40;  Chilton  v.  Lyons,  2  Black,  458.] 

At  law,  where  possession  was  essential  to  the  existence  of  this 

28   WHITE  ON   EQUITY.  433 


*  376  MACKKETII  V.  SY.^IMOKS. 

[  *  376  ]  lien,  the  vendor  of  land  could  *  have  no  lien,  after  he 
had  executed  aa  absolute  conveyance,  either  upon  the 
land  or  the  deeds;  [Goode  v.  Burton,  1  Exch,  189;  Esdalev.  Oxen- 
ham,  3  B.  &  C.  229);  but  by  sect.  25,  subs.  11,  of  the  Judicature 
Act  (36  &  37  Vict.  c.  66),  the  rule  in  equity  will  prevail  in  all  the 
Courts.  [As  to  the  nature  of  the  vendor's  lien  for  unpaid  purchase- 
money,  the  expressions  of  text  writers  are  not  uniform.  Story 
classes  it  under  the  head  of  implied  trusts.  (Storv's  Eq.  Sec. 
1218,  also  Snell's  Eq.  105).] 

As  to  the  vendor's  lien  for  the  unpaid  price  of  chattels  which  is 
strictly  possessory,  see  note  to  Chase  v.  Westmore,  Lead.  Cas.  on 
M.  &  M.  L.  p.  369,  3rd  ed. 

The  lien  also  attaches  if  possession  of  the  estate  has  been  deliv- 
ered to  the  purchaser,  although  there  has  been  no  conveyance  of  it 
to  him.  (Smith  v.  Hibbard,  2  Dick.  730;  Charles  v.  Andreics,  9 
Mod.  153;  Topham  v.  Constantine,  Taml.  135;  Evans  \.  Tiveedy,  1 
Beav.  55;  Andretv  v.  Andrew,  8  De  G.  M.  &  G.  336;  Langstaff  \. 
Nicholson,  25  Beav.  160;  In  re  Cockroft,  Broadbent  v.  Groves,  24 
Ch.  D.  94);  ["The  principle  on  which  the  lien  depends  is  this,  a 
person  who  has  obtained  the  estate  of  another  ought  not,  in  con- 
science, to  keep  it,  and  not  pay  the  consideration  money  in  full,  and 
a  third  person  who  receives  the  estate  with  full  knowledge  that  it 
has  not  been  paid  for,  ought  not,  as  a  matter  of  equity,  be  allowed 
to  keep  it  without  paying  for  it."  Perry  on  Trusts,  Sec.  232],  and 
upon  copyholds  and  leaseholds,  as  well  as  freeholds  ( Winter  v.  Lord 
Anson,  3  Russ.  492;  Mattheiu  v.  Boivler,  6  Hare,  110;  Wrout  v. 
Dawes,  25  Beav.  369). 

The  lien  will  also  extend  to  money  advanced  by  the  unpaid 
vendor  to  the  purchaser  for  improvements.  Ex  parte  Linden,  1  M. 
D.  &  De  G.  428. 

An  ostensible  vendor  will  moreover  be  entitled  to  a  lien  for  the 
purchase- money  as  unpaid,  as  for  instance,  when  he  has  conveyed 
an  estate  to  a  third  party  on  the  face  of  the  deed,  in  consideration 
of  a  sum  of  money,  and  he  is  unable,  in  the  absence  of  fraud,  and 
the  inadmissibility  of  parol  evidence  by  reason  of  the  Statute  of 
Frauds,  either  to  set  aside  the  deed  or  establish  a  trust;  Leman  v. 
Whitly,  4  Russ.  423.  [If  a  cestui  que  trust  conveys  his  equitable 
estate  in  land,  he  will  have  the  same  lien  upon  it  for  the  purchase- 
money  as  in  the  case  of  a  legal  estate:  Gallaway  v.  Hamilton,  1 
Dana,  576;  Lignon  v.  Alexander,  7  J.  J.  Marsh,  2S8;  Iglehart  v. 
Arminger,  1  Bland,  519.] 

Vendor\^  Lien  as  against  a  Railway  or  other  Company.  ^^ — The 
vendor  of  land  to  a  railway  company  will  have  a  lien  thereon  in  re- 
spect of  unpaid  compensation  as  well  as  purchase-money  {Walker 
V.  The  Ware,  Hadham,  and  Buntingford  Railway  Company,  1  L. 
R.  Eq.  195,  35  Beav.  52),  unless  such  compensation  is  the  subject 
of  a  separate  agreement  between  him  and  the  company  (lb.),  and 
434 


MACKRETII  V.  SVMMONS.  *  377 

he  is  not  deprived  of  such  lion  by  a  deposit  and  bond  under  the 
Soth  section  of  the  Lands  Chiuses  Consolidation  Act,  1845  (8  &  9 
Vict.  c.  18)  (lb.),  nor  by  accepting  a  deposit  in  the  names  of  trus- 
tees in  lieu  of  the  statutory  deposit,  if  the  purchase  and  compensa- 
tion moneys  exceed  th(*  deposited  sum  (lb.).  The  lien  also  ex- 
tends as  against  another  Corupany,  lessee  of  the  Company  Mhich 
made  the  purchase  {Bishop  of  Wincheftter  v.  Mid- Hants  Railivay 
Company,  5  L.  II.  Eq.  17;  Cosens  v.  Bognor  Railuuy  Company,  1 
L.  K.  Ch.  App.  594. 

And  a  mortgage  of  part  of  the  land  under  a  Railway  Act 
will  not  oust  the  vendor's  lien:    Nash  v.    *  Worcester  Im-  [  *  377  ] 
provement  Commissioners,  1  Jur.  N.  S.  973. 

The  Court  will,  although  the  railway  may  have  been  made  over 
the  land,  and  opened  for  public  use,  enforce  the  lien  by  sale  (lb.), 
{Wing  v.  Toftev/iaiii  and  Hampstead  Junction  Rai  bray  Company,  3 
L.  R.  Ch.  App.  740;  Walker  v.  The  Ware,  Hadham,  and  Bunting- 
ford  Railway  Company,  1  L.  R.  Eq.  195;  35  Beav.  52),  but  it  is  now 
ultimately  settled,  (overruling  on  that  point  the  cases  of  Cosens  v. 
Bognor  Railway  Company,  1  L.  R.  Ch.  App.  594  (where,  however, 
Turner,  L.J.,  was  in  favour  of  a  receiver),  and  Earl  St.  Germainsv. 
Crystal  Palace  Railway  Company,  11  L.  R.  Eq.  508,)  that  the 
Court  will  not  before  judgment  in  the  action,  grant  an  injunction  to 
restrain  the  Comjjany  from  running  trains  or  engines  over  the  land 
until  the  payment  of  the  [mrchase -money  of  the  land  agreed  to  be 
taken  (Pell  v.  Northampton  and  Banbury  Junction  Raibray  Com- 
pany, 2  L.  R.  Ch.  App.  100;  Munns  v.  Isle  of  Wight  Railway  Com- 
pany, 5  L.  R.  Ch.  App.  414;  reversing  the  decision  of  Sir  W.  M. 
James,  V.-C,  reported  8  L.  R.  Eq.  653.  Lycett  v.  Stafford  and 
Uttoxeter  Railway  Company,  13  L.  R.  Eq.  261;  and  see  and  con- 
sider Bishop)  of  Winchester  v.  Mid-Hants  Raibray  Company,  5  L. 
R.  Eq.  17;  Latimer  v.  Aylesbury  and  Buckiny ham  Railway  Com- 
pany, 9  Ch.  D.  385);  unless,  perhaps,  the  ('t)mpany  were  destroy- 
ing thepioperty  [Pell  \.  Northampton  and  Banbury  Junction  Rail- 
iLxiy  Company,  2  L.  R.  Ch.  A])p.  101,  per  Turner,  L.  J.);  but  it 
would  Feem  in  such  a  case  it  would  be  more  proper  to  apply  to  have 
the  purchase-money  paid  into  Court.     lb.  102,  Cairns,  L.  J. 

Nor  will  the  Court  appoint  a  receiver  before  judgment  (Latimer 
V.  Aylesbury  and  Buckingham  Railiuay  Company,  9  Ch.  D.  385), 
but  it  will  do  so  at  the  hearing  ;  Mitnns  v.  Isle  of  Wight  Railway 
Company,  5  L.  R.  Ch.  App.  414;  Williams  v.  Aylesbury  Raibray 
Company,  28  L.  T.  N.  S.  547. 

In  a  decree  for  specitic  performance  against  a  railway,  the  lien 
should  bo  declared  a  charge  on  the  land,  otherwise  it  will  not  be 
declared  so  on  petition.  Thus,  where  a  decree  had  been  obtained 
by  a  vendor  against  a  Railway  Company  for  specific  performance  of 
a  contract  for  sale,  in  which  inquiries  were  directed  to  ascertain  the 
amount  due  for  damages  and  costs,  and  the  amount,  when  found 
due,  together  with  the  purchase-money,  was  ordered  to  be  paid,  but 

435 


*37S  MACKRETII  V.  SYMMONS. 

was  not  declared  to  be  a  charge  on  the  land,  it  was  held  by  Lord 
Romilly,  M.  R.,  that  the  vendor  was  not  entitled,  under  the  liberty 
to  apply,  to  enforce  by  petition  a  lien  on  the  land  for  the  sums  due: 
especially  as  there  were  incumbrancers  not  parties  to  the 
[  *  378  ]  siiit,  whose  rights  would  be  affected  by  *  such  lien.  Attor- 
ney-General v.  Sittingbourne  and  Sheerness  Eailway  Com- 
pany, 1  L.  R.  Eq.  630;  35  Beav.  268. 

"Where  land  is  taken  by  a  Railway  Company,  and  the  purchase- 
money  ascertained  by  arbitration  under  the  Lands  Clauses  Consol- 
idation Act,  1845  (8  &  9  Vict.  c.  18),  has  been  paid,  the  vendor  is 
not  entitled  to'a  lien  on  the  land  sold  for  i\xe  costs  of  the  arbitration 
payable  to  him  by  the  Company  :  Earl  Ferrers  v.  Stafford  and  Ut- 
toxeter  Raihvay  Company,  13  L.  R.  Eq.  524. 

Nor  is  a  vendor  entitled  to  a  lien  for  costs  on  the  sum  deposited 
by  a  Railway  Company  under  the  85th  section  of  the  Lands 
Clauses  Act  (8  &  9  Vict.  c.  18),  and  upon  due  performance  of  the 
condition  of  the  bond,  mentioned  in  the  same  section,  the  Company 
are  entitled  to  have  the  money  paid  out  to  them,  notwithstanding 
the  pendency  of  a  question  between  them  and  the  vendor  with  re- 
spect to  such  costs.  In  the  matter  of  the  London  &  South  Westeryi 
Railway  Extension  Act,  Ex  parte  Stevens,  2  Ph.  772;  In  re  Neath 
and  Brecon  Railway  Company,  9  L.  R.  Ch.  App.  263. 

Where  the  sale  to  the  railway  company  is  in  consideration  of  a 
rent  charge  of  the  Company,  under  the  10  &  11  sections  of  the  Lands 
Clauses  Act,  it  has  been  held  that  there  will  be  no  lien  for  unpaid 
purchase-money,  Eail  of  Jersey  v.  Briton  Ferry  Floating  Dock  Com- 
pany, 7  L.  R.  Eq.  409.  Sed  vide  contra  Eyton  v.  Denbigh,  Ruthin, 
and  Coricen  Raihvay  Co.,  7  L.  R.  Eq.  439,  per  Lord  Romilly,  M.  R., 
S.  C.  6  L.  R.  Eq.  488,  490. 

The  owner,  however,  of  the  rent  charge  is  entitled  on  non-pay- 
ment of  the  rent  charge  to  a  receiver  of  the  tolls,  profits,  and  in- 
come of  the  undertaking  (Eyton  v.  Denbigh,  Ridhin,  and  Convert 
Raihvay  Comioany,  6  L.  R.  Eq.  488);  also  to  a  receiver  of  super- 
fluous lands  and  chattels  conveyed  and  assigned  by  the  Company 
to  trustees  for  the  benefit  of  their  creditors  (lb.)  He  will  also 
have  liberty  to  distrain  for  arrears  of  the  rent  charge  on  the  land 
conveyed  by  him  to  the  Company.  lb.,  but  not  on  the  superfluous 
lands  conveyed  to  the  trustees,  lb.,  nor  on  the  locomotives,  lb.  See 
also  Eyton  v.  Denbigh,  Ruthin,  and  Coriven  Raihvay  Comj^any,  6  L. 
R.  Eq.  14. 

Enforcement  of  Vendor'' s  Lien.~\ — For  Forms  of  Decrees,  declar- 
ing lien,  and  of  subsequent  order  enforcing  lien  bv  sale,  see  2  Seton, 
Decrees,  1330,  1331,  4th  ed. 

AVhere  the  purchase- money  of  an  estate  is  payable  by  instalments, 
in  an  action  by  a  vendor  for  specific  performance,  he  may  obtain  a 
declaration  that  he  is  entitled  to  a  lien  for  the  entirety  of  the  un- 
paid purchase-money,  and  future  instalments,  with  liberty  to  apply 
436 


MACKKETII  l\  SYMMONS.  *  c!70 

for  an  order  for  paymont,  aud  also  with  liberty  to  apply  in 
■^'respect  of  future  instalments  as  they  become  due.   Nlves  [*379  ] 
V.  Nives,  15  Cb.  D.  041). 

It  seems,  however,  that  if  the  property  the  subject  of  the  con- 
tract were  situated  abroad,  no  decree  enforcing  the  lien  would  be 
made  at  any  rate  in  the  absence  of  special  circumstances  (Norris  v. 
Chambers,  2*J  Beav.  240);  see  also  Wafson  v.  Hose,  10  W.  R.  (V.-C. 
K.)  745  S.  C,  nom.  Ease  v,  \Vaiso7i,  10  Ho.  Lo.  Ca.  072. 

What  auioiuds  io  an  Abandonment  or  Waiver  of  the  Lien.^ — When 
the  vendor  has  taken  from  the  purchaser  a  security  for  the  unpaid 
purchase-money,  the  question  arises,  whether  that  amounts  to  an 
abandonment  of  the  lien;  for  its  existence  must  be  decided,  not  as 
a  dry  question  of  fact,  whether  a  security  was  taken,  for  the  mere 
taking  of  a  security  is  not  a  waiver  of  the  lien,  but  it  depends  upon 
the  circumstances  of  each  case,  whether  the  Court  is  to  infer,  that 
the  lien  was  intended  to  be  reserved,  or  that  credit  icas  given,  and 
exclusively  given,  to  the  j^eison  from  xvhom  the  security  ivas  taken. 

The  inconvenience  of  such  a  doctrine,  so  unsatisfactory  and 
productive  of  litigation,  may  well  have  caused  Lord  Eldon  to  ob- 
serve, in  the  principal  case,  "that  it  would  have  been  better  at  once 
to  have  held,  that  the  lien  should  exist  in  no  case,  and  the  vendor 
should  suffer  the  consequences  of  his  want  of  caution;  or  to  have 
laid  down  the  rule  the  other  way  so  distinctly,  that  a  purchaser 
might  be  able  to  know,  without  the  judgment  of  a  Court,  in  what 
cases  it  would,  and  in  what  cases  it  w^ould  not,  exist." 

It  is  now  settled,  that  a  mere  personal  security  for  the  purchase- 
money,  as  a  bond  (Hearle  v.  Botelers,  Gary,  35,  and  Winter  v.  A7i- 
so)i,  3  Russ.  488,  reversing  the  decision  of  Sir  J.  Leach,  V.-C,  1  S. 
&  S.  434;  Collins  v.  Collins,  31  Beav.  340),  though  there  was  an 
agreement  that  it  should  remain  so  secured  during  the  life  of  the 
vendor,  on  the  regular  payment  of  interest  ( Winter  v.  Afison,  3 
Russ.  488);  a  bill  of  exchange  (Teed  v.  Camdhers,  2  Y,  &C.  C.  C. 
31);  although  with  a  surety  (Hughes  \.  Kearney,  1  S.  &  L.  136; 
Grant  v.  Mills,  2  V.  &  B.  300),  or  a  promissory  note  (Gibbons  v.  Bad- 
dall,  2  Eq.  Ca.  Abr.  032,  n. ;  Hughes  v.  Kearney,  1  S.  &  L.  132; 
Ex  parte  Peake,  1  Madd.  340),  whether  negotiated  or  not  (i?.rpar^e 
Louring,  2  Rose,  79),  will  not,  without  more,  be  sufficient  evidence 
of  the  intention  of  the  vendor  to  give  credit  exclusively  to  the  pur- 
chaser, or  to  his  security,  fo  as  to  take  away  the  lien.  [The  lien 
of  the  vendor  is  waived  if  a  distinct  and  independent  security  is 
taken  for  the  purchase-monev:  Hadlev  i\  Pickett,  25  Ind.  450; 
Camden  v.  Vail,  23  Cal.  033;  Young  r.  Wood,  11  B.  Mon.  123:  Lit- 
tle V.  Brown,  2  Leigh,  353;  Brown  v.  Gilman,  4  Wheat.  201;  Mims 
V.  Macon  R.  R.  Co.,  3  Kelly,  333.  AVhile  talking  of  the  indepen- 
dent security,  is  evidence  of  a  waiver,  it  is  not  conclusive  evidence: 
Dougherty  v.  Paine,  0  Minn.  443;  Manly  i'.  Slason,  21  Vt.  271.] 

In  Winter  v.  Lord  Anson,  1  S,  &  S.  434,  there  was  an  agreement 

437 


*  381  MACKEETH  V.  SYMMONS. 

for  the  sale  of  an  estate,  by  which  it  was,  amongst  other  things, 
agreed  that  the  amount  of  the  consideration-money  should 
[  *  380]   be  *  secured  by  the  bond  of  the  purchaser  to  the  -vendor 
with  interest  at  4Z.  per  cent.,  and  should  remain  so  secur- 
ed, during  the  life  of  the  vendor,  on  the  regular  payment  of  interest. 
A  conveyance  was  executed,  in  2^ursuance  of  the  agreement,  and  in 
consideration  of  the  j^urchase-moyiey  therein  expressed  to  have  been 
paid,  and  the  vendor's  receipt  was  indorsed  upon  it.     Part  only  of 
the  purchase-money  had,  in   fact,  been  paid,  and  the  residue  was 
secured  by  bond  conditioned  to  be  void  on  payment  by  the  vendee, 
to  the  executors,   administrators,  or  assigns  of  the  vendor  of  the 
residue  of  the  purchase-money  within  twelve  months  next  after  the 
decease  of  the  vendor,  with  interest  at  41.  per  cent.     Sir  J.  Leach, 
M.  R.,  although  he  at  first  decided  in  favour  of  the  lien,  afterwards 
decided  against  it,  upon  the  ground  that  the  case  was,  in  principle, 
the  same  as  if  the  conveyance  had  stated  the  real  contract  of  the  par- 
ties; and  that,  by  the  effect  of  that  contract,  the  vendor  agreed  to 
part  with  his  estate  in  consideration  of  the  bond  for  the  future  ^pay- 
ment of  the  price;  and  that,  when  such  bond  was  executed  the  es- 
tate passed  to  the  vendee  in  equity,  as  well  as  at  law.      "Suppose," 
observed  his  Honor,  "it  had  been  expressed  in  this  conveyance,  that 
the  price  was  not  to  be  paid  until  the  death  of  the  vendor,  and  there 
had  been  a  covenant  on  the  part  of  the  purchaser  then  to  pay   the 
amount,  and  to  pay  the  interest  in  the  meantime;  could  it  then  have 
been  said  that  it  appeared  by  this  deed  that  the  vendor  had  con- 
tracted not  to  part  with  his  estate  until  the  actual  payment  of  the 
price?     Would  it  not  rather  have  been  the  true  effect  of  the  lan- 
guage of  the  conveyance  in  such  case,  that  the  vendor  had  contracted 
to  part  with  his  estate  presently,  and  not  in  consideration  of  the 
actual  immediate  payment  of  the  price,  but  in  consideration  of  the 
covenant  for  the  future  payment  of  that  sum,  with  interim  interest; 
and  that  having,  therefore,  the  covenant,  which  was  the  considera- 
tion bargained  for,  the  estate  must  pass  by  the  conveyance  in  equity, 
as  well  as  at  law?"     This  decision  was  reversed  by  Lord  Lyndhurst 
who  held,  that  the  circumstance,  that  the  money  was  secured  to  be 
paid  at  a  future  day,  did  not  aflfect  the  lien.    "I  do  not  think,"  said 
his  Lordship,  "that  the  lien  is  affected  by  the  fact  of  the  period   of 
payment  being  dependent  on  the  life  of  the  vendor.      The  circum- 
stance does  not  appear  to  me  to  afford  such  clear   and   convincing 
evidence  of  the  intention  of  the  vendor  to  rely,  not  npon  the  secur- 
ity of  the  estate,  but  solely  upon  the  personal  credit  of  the  vendee 
as  would  be  necessary  in  order  to  get  rid  of  the  lien.     It  Avould  not 
be  inconsistent  with  an  express  pledge;  and  I  do  not  perceive  why 
it  is  at  variance  with  the  lien  resulting  from  the  rules  of 
[  *  381  ]    *  a  Court  of  Equity:"  3  Russ.  488.  An  appeal  was  lodged 
in  the  House  of  Lords  against  this   decision,  but  it  was 
afterwards  withdrawn:  Sugd.  V.  &  P.  258,  11th  edit.     [A  mere  per- 
sonal security,  as  a  bond  or  a  bill  or  a  pz'ommissory  note  will  not 
438 


MACKRETII  V-  SVMMONS.  *  382 

of  itself  operate  as  a  waiver  of  the  lien:  Pinciiain  v.  Collard,  lo 
Texas,  833;  Brown  v.  Grigsl)y,  21  Cal.  172;  Thornton  v.  Knox,  0  B. 
Mon.  74;  Van  Doren  v.  Dodd,  2  Green  Ch.  3^7.  But  if  the  bill  or 
note  is  taken  as  payment  of  the  consideration-money,  or  if  the 
security  was  the  thing  bargained  for  the  lien  is  gone.] 

Where  an  estate  is  conveyed,  in  consideration  of  an  annuity,  the 
vendor  will  have  a  lien  upon  the  laud  for  the  annuity,  although  a 
bond  or  covenant  is  given  to  secure  the  payment  of  the  annuity. 
See  Tardiffe  v.  Scriujhan,  1  Bro.  C.  C.  423;  Blackburn  v.  Greijno)i^ 
1  Bro.  C.  C.  420.  In  Clarke  v.  Eoyle,  3  Sm.  502,  Sir  L.  .Shadtcell, 
V.-C,  is  reported  to  have  said,  that  it  appeared  to  him  that  Lord 
Eldon,  in  Mackreth  v.  Symnions.  had  expressly  overruled  the  de- 
cision of  Lord  Camden  in  'Tardiffe  v.  Scrughan.  However,  in  Buck- 
land  y.  Pocknell,  13  Sim.  412,  his  Honor  said  that  though  Lord  Eldon 
showed  an  inclination  to  criticise  Tardiffe  v.  Scrughan,  and  to  es- 
cape from  it,  if  the  circumstances  of  the  case  before  him  would  al- 
low him  to  do  so,  yet  is  Honor  did  not  wish  it  to  be  understood 
to  bo  his  opinion,  that  Lord  Eldon  overruled  it  point  blank.  In 
the  case  of  Mattkeiv  v.  Boxvler,  6  Hare,  110,  where  there  was  a  sale 
and  assignment  of  a  life  interest  in  leaseholds  in  consideration  of 
a  iveekly  sum,  to  bo  paid  to  the  vendor  during  her  life,  with  a  cov- 
enant by  the  purchaser,  for  himself,  his  heirs,  executors,  and  ad- 
ministrators, to  make  the  weekly  payment  to  the  vendor,  and  to  re- 
pair and  insure  the  premises,  and  otherwise  perform  the  covenants 
in  the  lease;  it  was  held,  by  Sir  James  Wigram,  V.  C,  that  the 
vendor  was  entitled  to  a  lien  on  the  life  interest  in  the  leaseholds, 
which  was  the  subject  of  the  assignment  for  the  weekly  payment. 
His  Honor  observing,  "  That,  if  the  case  of  Tardiffe  v.  Scrughan  was 
not  approved,  it  certainly  was  not  overruled  by  Lord  Eldon." 

Upon  examining  carefully  that  branch  of  the  principal  case  which 
relates  to  the  lien  claimed  for  the  annuities,  it  will  be  found,  not- 
withstanding the  ambiguity  of  Lord  Eldon'' s  language,  that  it  mav 
be  reconciled  with  Tardiffe  v.  Scrughan  and  Matthew  v.  Bowler;  for 
Lord  Eldon  did  not,  as  a  bare  abstract  point  of  law,  decide  that 
there  is  no  lien  where  an  estate  is  sold  in  consideration  of  an  an- 
nuity secured  by  a  bond  or  covenant;  but  he  considered  that  the 
special  circumstances  of  ilie  case  showed  that  the  vendor  intended 
to  rely  upon  the  personal  security,  \iz.,  the  bond  for  20,000/.,  and 
that  such  was  the  conception  also  of  the  vendee.  The  principle, 
therefore,  upon  which  that  branch  of  Mackreth  v.  Symmons  was 
decided,  is  certainly  correct;  but  it  has  been  doubted  by  an  eminent 
writer,  whether  the  circumstances  of  the  case  were  such  as  justified 
Lord  El'lon  in  coming  to  the  conclusion,  that  it  was  the 
intention  of  the  vendor  to  rely  *  upon  the  personal  se-  [  *  382  ] 
curity,  and  thus  discharge  the  lien  for  the  annuities. 
See  Sugd.  V.  &  P.  869,  11th  edit. 

"Where  however,  the  conveyance  was  made  in  consideration  of  the 
vendee  entering  into  covenants  therein  contained  for  payment  of  an 

439 


*  3S3  MACKRETII  V.  SYMMONS. 

annuity  to  the  vendor,  and  3000Z.  to  certain  x^ersons  in  the  event  of 
the  vendee's  marrying.  (See  Clarke  \.  Royle,  3  Sim.  409.).  Sir  L. 
ShadweH,  V.-C,  distinguishing  the  case  from  Tardiffe  v.  Scrughan, 
held,  that  there  was  no  lien,  on  the  ground  that  the  deed  plainly- 
marked  out,  that  the  consideration  on  the  one  side,  teas  the  convey- 
ance of  the  estate,  and,  on  the  other,  the  entering  into  the_cove- 
nants. 

Upon  the  same  principle  it  has  been  held,  that,  where  a  receipt 
was  given  by  the  vendor  for  a  bond,  as  the  consideration  for  an  es- 
tate, the  lien  was  gone,  as  the  parties  in  effect  bargained  for  a  se- 
curity, and  not  for  a  stipulated  sum:  Parrott  v.  Sweetland,  3  My.  & 
K.  655.  [Any  conduct  in  the  vendor  that  makes  it  unjust  or  un- 
fair or  inequitable  for  him  to  insist  upon  the  lien  will  discharge  it: 
Aldridge  u  Dunn,  7  Blackf.  249;  Cox  v.  Fenwick,  3  Bibb.  183; 
Clark  V.  Hart,  3  J.  J.  Marsh,  553;  Eoss  v.  Whitson,  6  Yerg.  50; 
Lynch  V.  Dearth,  2  Pa.  St.  101;  McCowen  v.  Jones,  14  Texas,  682; 
lledford  V.  Gibson,  12  Leigh,  343.] 

Buckland  v.  Pocknell,  13  Sim.  406,  proceeds  on  the  same  princi- 
i)lo.  There  A.  agreed  to  sell  an  estate  to  B.  for  an  annuity  of  200Z., 
to  be  paid  to  him  for  his  life,  and  an  annuity  of  92Z.,  to  be  paid 
;iPter  his  decease  to  his  son,  and  B.  was  to  pay  off  a  mortgage  to 
which  the  estate  was  subject.  Accordingly  B.  executed  a  deed,  by 
which  he  granted  the  annuities  to  A.  and  his  son,  and  covenanted  to 
pay  them;  and  by  a  conveyance  of  even  date,  bvit  executed  after  the 
annuity  deed,  after  reciting  the  annuity  deed,  A.  and  the  mortgagee, 
in  pursuance  of  the  agreement,  and  in  consideration  of  the  2^remises 
and  of  the  annuities  having  beeii  so  granted  as  thereinbefore  recited, 
and  of  the  payment  of  the  mortgage-money,  conveyed  the  estate 
to  B.  Upon  the  death  of  A.,  his  son's  annuity,  which  had  been  as- 
signed to  the  plaintiff,  became  in  arrear.  Sir  L.  Shadicell,  V.-C, 
held  that  there  was  no  lien  for  the  annuity. 

So,  likewise,  in  Dixon  \.  Gay  fere  (17  Beav.  421;  21  Beav.  118), 
where  the  purchaser  contracted  to  buy  an  estate  from  the  vendor, 
and  upon  an  assignment  being  made  to  grant  to  the  vendor  an 
annuity  of  50Z.  per  annum,  during  three  lives,  "  to  be  secwed  by 
bond,"  Sir  John  Romilly,  M.  R.,  held,  that  the  vendor  had  no  lien 
on  the  estate  for  payment  of  the  annuity.  The  decree  of  his  Honor 
in  this  case  was  varied  by  Lord  Cramvorth,  C,  who,  agreeing  with 
his  Honor  that  the  vendor  had  no  lien  on  the  estate  for  payment  of 
the  annuity,  held  that  he  was  entitled  (the  purchaser  being  dead 
and  there  having  been  no  conveyance)  to  have  the  annuity  secured  by 
a  valid  and  effectual  bond  before  he  could  be  called  upon  to  convey 
the  estate.  1  De  G.  &  Jo.  655.  See  also  Dyke  v.  Rendall, 
[  *  383  ]  2  De  G.  Mac.  &  G.  209;  Frail  v.  ^  Ellis,  16  Beav.  350; 
Stuart  V.  Ferguson,  Hayes,  Ir.  Exch.  Rep.  452. 

So  where   a  leasehold  brickfield  was  assigned  to  §,   company  in 
consideration   of  60.00Z.  to  be  paid  to  the  vendor  as  thereinafter 
mentioned,  viz.,  "50  per  cent,  on  all  moneys  to  be  received  from  sale 
440 


MACKRETII  V.  SYMMONS.  *  3S4 

of  shares,  and  50  percent,  on  all  moneys  borrowed  by  the  Company 
by  way  of  capital,  until  tbo  (iOOO/.  was  j)aid.  The  Company  became 
abortive.  No  money  was  received  by  sale  of  shares,  or  borrowed, 
and  ultimately  the  Company  was  ordered  to  bo  Avound  up.  It  was 
held  by  theCourtof  Appeal,  affirming  the  decision  of  Maiins,  V.-C, 
that  the  nature  of  the  contract  was  such  as  to  exclude  the  vendor's 
lien,  and  that  the  vendor  had  no  lien  on  the  leasehold  jjremises. 
"The  vendor,"  said  James,  L.  J.,  "got  for  his  property  a  charge 
upon,  and  a  right  to  the  capital  of  the  Company  to  the  extent  of 
6000Z.,  when  it  came  in.  To  my  mind  it  is  clear  that  he  intended 
to  rely  on  that  fund  for  payment,  and  intended  that  the  Company 
should  have  the  means  of  borrowing.  This  is  quite  inconsistent 
with  a  lien,  which  would  probably  make  the  Company  unable  to* 
pledge  their  property."  In  re  Brenhvood  Brick  and  Coal  Com- 
2)an)j,  4  Ch.  &  D.  502.  See,  also,  and  consider,  In  re  Patent  Car- 
riage Covqiamj,  Gore  &  DuranVs  Case,  2  L.  R.  Eq.  340;  and  the 
remarks  thereon  of  Baggallay,  L.  J.,  in  In  re  Brenticpod,  Brick  and 
Coal  Company,  4  Ch.  D.  565. 

From  the  foregoing  cases  we  may  conclude,  that,  although  the 
mere  giving  of  a  bond,  bill  of  exchange,  promissory  note,  or  cove- 
nant, for  the  purchase-money,  or  the  granting  of  an  annuity,  se- 
cured by  a  bond  or  a  covenant,  will  not  be  suiJicient  to  discharge 
the  equitable  lien,  yet  where  it  appears  that  the  note,  bond,  cove- 
nant, or  annuity  wa;^  substituted  for  the  consideration-money,  and 
was  in  fact,  the  thing  bargained  for,  the  lien  will  be  lost.  See  In  re 
Albert  Life  Assurance  Comjjany,  11  L.  R.  Eq.  178.  [Campbell  v. 
Baldwin,  2  Humph.  248;  Sears  v.  Macon,  2  Mich.  243;  Tiernan  v. 
Thm-man,  14  B.  Men.  277;  Mimsu  K.  E.  Co.,  3  Kelly,  333.] 

An  actual  agreement,  though  by  parol,  to  accept  a  security,  and 
rely  upon  it  alone,  will,  it  seems,  discharge  the  vendor's  lien  for  un- 
paid purchase  money.  [If  the  vendor  takes  a  mortgage  on  the 
same  laud  sold  for  part  of  the  purchase  money,  or  for  the  whole,  he 
will  be  held  to  have  waived  his  lien  for  the  remainder:  Brown  v. 
Gilman,  4  Wheat.  291;  Fish  v.  Howland,  1  Paige,  30;  even  if  the 
mortgage  is  void:  "Way  v.  Patty,  1  Ind.  102;  Camden  v.  Vail,  23 
Cal.  633;  and  see  Hadley  v.  Pichett,  25  Ind.  450;  Littler.  Brown, 
2  Leigh,  355.]  See  1  S.  &  S.  445,  where  Sir  John  Leach  observes, 
"That  it  is  the  vendor  who  in  the  first  place  attempts  to  raise  an 
equity  against  the  allegation  of  the  deed;  and  if  the  vendor  be  per- 
mitted to  repel  the  effect  of  the  deed,  by  showing  that  the  price 
was  not  paid,  it  must  necessarily  follow  that  the  vendee  must  be  at 
liberty  to  disclose  the  whole  truth,  and  to  explain  the  reason  whv 
that  payment  was  not  made." 

Although  the  lien  of  a  vendor  for  unpaid  purchase-money  may 
be  discharged  by  his  accepting  the   solicitors  employed  in  the  sale 
as  his  debtors  in  the  place  of  the  purchaser,  on  the  sup- 
position *that  the  ])urchase-money  had  been  paid  to  them,  [  *3S4  ] 
this   was  held  not  to  be  the  case  where  in  fact  no  jiay- 


*  385  MACKRETII  V.  SYMMONS. 

ment  of  the  purchase- money  was  made  by  the  purchaser  to  the 
solicitors,  but  they  were  simply  directed  by  the  purchaser  to  pay 
the  purchase-money  out  of  moneys  due  by  them  to  the  purchaser 
on  an  unsettled  account.  See  Wrout  v.  Daives,  25  Beav.  869.  See 
also  Wilson  v.  Keating,  5  Jur.  N.  S.  815,  4  De  G.  &  Jo.  588. 

If  a  vendor,  who  knows  the  purchase-money  is  trust-money,  suf- 
fers one  of  the  trustees  to  retain  part  of  it,  without  the  knowledge 
of  the  co-trustees  or  the  cestuis  que  trust,  he  has  no  lien  on  the 
estate  for  the  part  so  retained:  White  v.  Wakefield,  7  Sim.  401;  and 
see  Price  v.  Blakemore,  6  Beav.  507. 

Upon  the  same  principle  in  Muir  v.  Jolly,  26  Beav.  143,  a  trustee 
having  purchased  an  estate  on  behalf  of  the  trust,  the  vendor  exe- 
cuted a  conveyance  to  the  trustee,  which  recited  the  trust,  and  that 
the  trustee  had  called  in  trust- moneys  sufficient  to  pay  the  purchase- 
money,  and  it  contained  a  receipt  for  the  whole  purchase-money. 
In  fact,  only  a  part  was  paid,'and  the  trustee  gave  his  bond  and  a 
memorandum  of  deposit  for  the  deficiency,  the  latter  reciting  that 
the  vendor  had  lent  the  trustee  that  sum  to  enable  him  to  complete. 
It  was  held  by  Sir  John  Romilly,  M.  R.,  that  the  vendor  had  no 
lien  on  the  title  deeds  in  his  possession  for  the  unpaid  purchase - 
money. 

Where  there  was  a  stipulation  that  the  purchase  money  should 
be  paid  within  tivo  years  after  a  re- sale,  it  was  held  that  the  ven- 
dor's lien  was  gone:     Ex  j^cirte  Parkes,  1  G.  &  J.  228. 

It  has  been  held,  that,  if  a  vendor  take  a  totally  distinct  and  in- 
dependent security,  as  for  instance,  a  mortgage  of  a  long  annuity 
or  of  another  estate  for  the  unpaid  purchase-money,  it  will  then 
become  a  case  of  substitution  for  the  lien,  instead  of  a  credit  given. 
Nairn  v.  Prouse,  6  Ves.  752. 

But  the  mortgage  must  it  seems  be  given  under  such  circumstances 
as  is  laid  down  in  the  principal  case,  that  the  intention  of  the  ven- 
dor to  give  up  the  lien,  can  be  therefrom  clearly  and  satisfactorily 
implied.  See  Coivell  v.  Simpson,  16  Ves.  278;  Saunders  v.  Leslie, 
2  Ball  &  B.  515.  [If  a  mortgage  is  taken  on  another  estate,  the 
obvious  intention  is  of  burdening  one  estate  and  that  the  other  shall 
remain  free  and  unencumbered:     Bispham's  Eq.  Sec.  355.] 

And,  where  a  bond  was  given  for  the  unpaid  purchase- money, 
and  a  mortgage  on  part  of  the  purchased  estate,  the  intention,  that 
the  lien  should  not  extend  over  the  rest  of  the  estate,  was  held  to  be 
sufficiently  clear;   Capper  v.  Spottiswoode,  Taml.  21. 

So  where  the  vendor  took  a  mortgage  of  the  estate  for  part  of 
the  purchase-money,  and  a  note  for  the  remainder,  it  was  held  that 
he  had  no  lien  for  the  money  due  on  the  note.  Bond  v. 
[*3S5]i^enf,  *2  Vern.  281,  "because,"  as  observed  by  Lord 
Redesdale,  in  commenting  on  that  case,"  it  was  mani- 
festly the  intention  of  the  parties  that  the  amount  of  the  note 
should  not  be  a  lien  on  the  lands,  else  they  would  have  had  a 
mortgage  for  the  whole;  the  seller  took  the  estate  for  his  debtor 
442 


MACKRETII  V.  SYMMONS.  *  386 

for  part  of  the  purchaso  money,  and  was  content  with  the  note  for 
the  remaining  ]»art."  See  H^iylics  v.  Kearney,  1  S.  A:  L.  180; 
Eip-e  V.  Sadlei)\  14  Ir.  Ch.  Hep.   1 19,  15  H>.  1. 

And  where  the  purchaser  with  the  concurrence  of  the  vendor 
mortgaged  the  estate  for  a  sum  which  the  vendor  received  in  part 
payment  of  the  purchase-money,  taking  ])ills,  which  were  ultimately 
dishonoured,  for  the  remainder:  it  was  held,  that  the  vendor  had 
no  lien  on  the  purchase-money  arising  from  a  second  scale,  in  pre- 
ference to  the  mortgagee.  Good  v.  Pollard,  9  Price,  544;  10  Price, 
109. 

Where  the  vendor,  without  receiving  the  purchase-money,  exe- 
cutes a  conveyance  for  the  purpose  of  enabling  the  purchaser  to 
execute  a  mortgage,  ho  will  lose"  his  lien  on  the  estate  as  against 
mortgagee:     Smith  v.  Ei-ans,  28  Beav.  59. 

There  will,  in  the  absence  of  contract,  be  no  lien  upon  land  in 
favour  of  a  legatee,  who  has  conveyed  it  away  pursuant  to  the  di- 
rections of  a  will,  as  a  condition  precedent  to  the  receipt  of  the 
legacy  and  which  the  executor  (who  had  lost  the  assets  of  his  tes- 
tator) did  not  pay.      See  Barker  v.  Barker,  10  L.  R.  Eq.  438. 

The  vendor's  lien  is  assignable  even  by  parol  (Dnjden  v.  Frost, 
3  My.  &  Cr.  040):  but  the  assignee  will  take  it  subject  to  any  prior 
incumbrances  created  by  the  vendor:  Lacey  v.  Ingle,  2  Ph.  413; 
Mangles  v.  Dixon,  1  Mac.  &  G.  437,  3  Ho.  Lo.  Ca.  702;  Rayne  v. 
Baker,  1  Gift'.  241;  Peto  v.  Hammond,  29  Beav.  91. 

A  bequest  of  money  due  upon  a  vendors  lien  is  within  the  Mort- 
main Act  (9  Geo.  2,  c.  36),  and  therefoi-e  void  as  savouring  of 
realty:     Harrison  v.  Harrison,  1  Russ.  &  My.  71. 

Upon  the  death  of  a  vendor  of  an  estate  in  fee  intestate  before 
the  conveyance  or  payment  of  the  purchase-money,  his  heir-at-law 
will  be  trustee  for  his  legal  personal  representatives  (Morgan  v. 
Swansea  Urban  Sanitary  Authority,  9  Ch.  D.  582),  but  by  reason  of 
his  havinf  a  lien  on  the  property  for  hia  purchase-money,  and  not 
beincr  bound  to  convey  until  payment,  ho  has  been  held  not  to  be  a 
"6a  re -trustee"  within  sect.  48  of  the  Land  Transfer  Act,  1875  (38 
&  39  Vict.  c.  87  s.  48),  "so  that  upon  his  death  intestate,  the  money 
still  remaining  unpaid,  and  the  conveyance  unexecuted,  his  legal 
personal  representative  could  not  convey  the  legal  estate 
*  under,  the  Act,  but  the  legal  estate  being  in  the  beir  at-  [  '"'■  380  ] 
law  who  was  an  infant,  the  usiial  vesting  order  was 
made:  lb.  In  such  cases,  now,  the  legal  personal  re]iresentative 
of  the  heir,  could  convey  under  the  Conveyancing  and  Law  of  Prop- 
erty Act,  1881,  s.  30,  repealing  s.  48  of  the  Land  Transfer  Act,  is'lb, 
in  cases  of  deaths  after  the  3 1st  of  December,  1881.  See  also  s.  4  of 
The  Conveyancing  and  Law  of  Property  Act,  1881. 

A  judgment  entered  up  against  the  vendor  after  a  contract  for 
sale,  may,  although  execution  cannot  be  levied  upon  it  under  the 
Judgment  Act  (18  &  19  Vict.  c.  15),  bo  enforced  against  t4ie  unpaid 
purchase  money:      Broicn  v.   Perrott,  4  Beav.   585.     [It  has  been 

443 


*3S7  M'ACKRETII  V.  SYMMONS. 

held  ia  several  of  the  eases  that  the  vendor's  lien  will  not  prevail 
against  judgment  creditor's  or  against  purchaser's  under  an  execu- 
tion sale:  Hall  v.  Jones,  21  Md.  439;  Crawley  v.  Timberlake,  1 
Ired.  Eq.  346;  Harper  v.  Williams,  1  Dev.  &  Bat.  Eq.  32;  Roberts 
V.  Rose,  2  Humph.  145.] 

Marshalling  for  Lien. — In  the  principal  case.  Lord  Eldon  ex-  . 
pressed  some  doubt,  although  it  was  not  neccessary  to  decide  the 
point,  whether,  on  the  death  of  the  vendee,  without  having  paid 
his  purchase-money,  a  Court  of  equity  would  marshall  his  assets  in 
favour  of  third  parties,  by  allowing  them,  in  case  the  vendor,  having 
a  lean  on  the  real  estate,  should  exhaust  the  personalty,  to  stand  in 
his  place  on  the  real  estate  to  the  extent  of  his  lien.  In  Coppin  v. 
Coppin,  Sel.  Ch.  Ca.  28,  Lord  King  held,  that  the  ordinary  rule  of 
marshalling  would  not  apply  to  such  a  case;  and  in  Pollexfen  v. 
Moore,  3,Atk.  273,  Lord  Hardwicke  said,  "That  this  equity  (i.  e. 
the  lien  for  unpaid  purchase  money)  will  not  extend  to  a  third  per- 
son, but  is  conlined  to  the  vendor  and  vendee." 

It  has,  however,  been  repeatedly  decided,  overruling  Copinn  v. 
Coppin,  and  the  dictum  of  Pollexfen  v.  Moore,  that  the  lien  of  a 
vender  must  be  subjected  to  the  ordinary  rule  of  marbhalling  as- 
sets, and  that,  consequently,  when  the  purchased  estate  descended 
the  estate  and  personal  assets  ought  to,  as  against  the  heir,  be  mar- 
shalled in  favour  of  simple  contract  creditors  and  legatees  {Trim- 
mer V.  Bayne,  9  Ves.  209;  Sproule  v.  Prior,  8  Sim.  189);  [The  lien 
will  exist  in  favor  of  a  legatee  whose  legacy  has  been  taken  to  pay 
for  the  purchase  of  an  estate  in  the  hands  of  the  heir,  in  other  words 
the  personal  estate  will  be  marshalled:  Iglehart  v.  Arminger,  1 
Bland,  519;  Cheesbrough  v.  Millard,  1  Johns.  Ch.  412;]  and  where 
the  purchased  estate  was  devised,  as  against  the  devisees,  in  favour  of 
simple  contract  creditors  (Selby  v.  Selby,  4  Russ.  336;  Emuss  v. 
Smith;  2  De  G.  &  Sm.  722),  but  not  in  favour  of  legatees  {Wythe  v. 
Henniker,  2  My.  &  Iv.  635;  but  see  Birds  y.  Askey,  24  Beav.  618, 
621;  Lord  Lilford  v.  Poivis  Keck,  1  L.  R.  Eq.  347;  Hensman  v. 
Fryer,  2  L.  R.  Eq.  627;  reversed,  3  L.  R.  Ch.  App.  420;  Gibbons 
V.  Eyden,  7  L.  R.  Eq.  371;  Dugdale  v.  Diigdale,  14  L.  R.  Eq.  234. 
But  now,  freehold  and  copyhold  estates  are,  under  the  Act  for 
payment  of  creditors  by  simple  contract  (3  &  4  Will.  4  c.  104),  as- 
sets for  the  payment  of  debts  by  simple  contract,  in  all  cases  com- 
iag  within  the  operation  of  the  statute,  the  doctrine  of  marshalling  . 

in  favour  of  simple  contract  creditors,  is  inapplicable,  and 
[  *  387  ]  such  *  debts  will  be  satisfied  when  necessary  out  of  those 

estates. 
As  to  the  doctrine  of  marshalling  generally,  see  note  to  Aldrich  v. 
Cooper,  vol.  2. 

Estate  in  the  hands  of  Third  Parties  when  Bound  by  the  Vendor's 
Lien.] — The  equitable  lien  for  unpaid  purchase -money  will,  as  is 
444 


MACKRETir  V.  SYM-ArOXS.  *  387 

laid  down  in  Mackrefh  v.  Symmons,  bind  tho  estato  not  only  in  the 
hands  of  the  purchaser  and  his  heirs,  and  persons  taking  from  them 
as  volunteers,  but  also  in  the  hands  of  purchasers  for  valuable  con- 
sideration, who  bought  with  notice  that  the  j)urchase-nioney  re- 
mained nujiaid:  Hearle  v.  Botelers,  Gary's  Ch.  Rep.  35;  Gibbons  v. 
Baddall,  2  Eq.  Ca.  Ah.  ()82  D.  n.  Elliot  v.  Edwards,  3  B.  &  P.  183; 
Walker  v.  Presirick,  2  Ves.  G22;  Hughes  v.  Kearney,  1  S.  &  L.  135; 
Winter  v.  Lord  Anson,  3  Russ.  488;  ,S'.  C,  1  S.  &  S.  434;  Frail  v. 
Ellis,  1(3  Beav.  350,  354;  Davies  v.  Thomas,  2  Y.  &  C.  Exch.  C.  A. 
234. 

[This  equitable  lien  prevails  against  the  purchaser,  his  heir?,  and 
all  persons*  claiming  under  him,  with  notice  that  the  purchase- money 
is  unpaid:  Neil  v.  Kinney,  11  Ohio,  58;  Warner  v.  Van  Alstyne,  3 
Paige,  513,  it  also  prevails  against  the  widow's  dower,  Fisher  v. 
Johnson,  5  Ind.  492;  Williams  v.  Wood,  1  Humph.  408;  Crane  u 
Palmer,  8  Blackf.  120.] 

But  the  lien  will  not  prevail  against  a  bona  lido  purchaser  w-ho 
bought  without  notice  that  the  purchase-money  remained  unpaid 
(Gator  \.  Earl  of  Pembroke,  1  Bro.  C.  C.  302);  and,  although  the 
title  is  deduced  from  the  first  vendor,  in  recital,  still  that  will  not 
be  sufficient  to  affect  the  purchaser  with  notice,  if  the  recital  does 
not  show  that  the  estate  was  not  paid  for:  Cator  v.  Earl  of  Pem- 
broke, 1  Bro.  C.  C.  302;  Eyre  v.  Sadlier,  14  Ir.  Ch  Rep.  119;  15  lb. 
1.  [A  bona  fide  purchaser  for  value  without  notice  will  take  the 
estate  unaffected  by  the  lien:  Carter  v.  Bank  of  Ga.,  24  Ala.  37; 
Champion  v.  Brown,  6  Johns.  Ch.  402;  Scott  v.  Orbinson,  21  Ark. 
202;  Work  V.  Brayton,  5  Ind.  396;  Selby  v.  Stanley,  4  Mi-s.  05; 
'Bayley  v.  Greenleaf,  7  Wheat.  46.]  See,  however,  Davies  v.  Thomas, 
2  Y.  &  C.  Exch.  Ca.  234:  in  which  case  a  reference,  in  the  convey- 
ance of  the  second  purchasers  to  the  will  under  which  the  sale  was 
made,  was  held  to  be  sufficient  notice  of  a  lien  not  appearing  upon 
the  face  of  the  will,  upon  the  ground  that  notice  of  the  will  ought 
to  have  put  the  [)urchasers  upon  inquiries  which  would  have  led  to 
the  discovery  of  the  lien.  The  authority  of  this  case,  as  to  what  is 
to  be  deemed  sufficient  notice,  seems  doubtful.  See  Sugd.  Y,  &  P. 
819,  11th  ed. 

The  fact  of  the  vendor  remaining  in  possession  of  the  estate  as 
lessee,  where  he  has  acknowledged  the  receipt  of  the  purchase-money 
in  the  body  of  the  deed  and  by  indorsement  will  not  be  notice  of  the 
purchase-money  remaining  unpaid,  so  as  to  cause  the  lien  to  attach: 
White  V.  Wakefield,  7  Sim.  401. 

But  if  the  vendor  claiming  a  lien  retains  the  conveyance  and  tho 
title-deeds,  a  subsequent  purchaser  or  mortgagee  (although  ho  may 
have  acquired  the  legal  estate)  may  be  affected  with  notice  of  tho 
lien,  and  therefore  bound  by  it  where  the  Court  imputes  to  him  fraud, 
or  gross  and  wilful  negligence,  for  omitting  all  inquiries  as  to  the 
deeds:  [Any  fact  that  would  put  a  reasonable  man  upon  his  inquiry 
will  effect  the  purchaser  with  notice,  "and  if  the  vendor  remains  in 

445 


*3S8  MACKRETII  ■y.  SUMMONS, 

possession  it  will  be  sufficient  to  put  a  purchaser  upon  his  inquiry 
and  is  constructive  notice:"  Perry  on  Trusts,  Sec.  239;  Hamilton  v- 
Foulkes,  16  Ark.  340;  Hopkins  u  Garrard,  6  B.  Mon.  67;  Riuggold 
V.  Bryan,  3  Md.  Ch.  488,]  Worthington  v.  Morgan,  16  Sim. 
[  *  388]  547;  Peto  v.  Hammond,  30  Beav.  495;  *  and  see  Hewitt  v. 
Loosemore,  9  Hare,  449 ;  Finch  v.  Shaic,  Collyer  v.  Finch, 
19  Beav.  500;  5  Ho.  Lo.  Ca.  905. 

As  to  restrictions  on  constructive  notice,  see  the  Conveyancing  Act 
1882  (45  &  46  Vict.  c.  39),  s.  3. 

A  vendor  of  land  in  a  Register  County  (except  York),  part  of 
ivhose  purchase- money  remains  unpaid,  is  under  no  obligation  to 
obtain  for  the  unpaid  amount  any  written  security  which  can  be  re- 
gistered, but  is  entitled  to  rely  simply  on  his  equitable  lien,  which 
he  can  enforce  against  sub- purchasers,  who  have  notice  of  it,  actual 
or  constructive:  Kettlewell  v.  Watson,  21  Ch.  D.  685;  26  Ch.  D.  501. 
And  see  note  to  LeNeve  v.  LeNeve,  vol.  2. 

[If  a  purchaser  knows  that  part  of  the  purchase- money  is  unpaid 
he  is  put  upon  his  inquiry.     Manley  v.  Slason,  21  Vt.  271.] 

But  the  vendor,  although  he  retains  the  purchase-deed,  will,  in 
such  case  lose  his  lien,  as  against  sub-vendees,  when  his  solicitors, 
at  the  request  of  the  vendees,  register  the  purchase  deed  with  the 
receipt  for  the  purchase-money  endorsed,  thereby  enabling  the  ven- 
dees to  represent  to  the  sub-vendees  that  the  land  was  free  from  in- 
cumbrances: Kettlewell  \.  Watson,  2Q  Ch.  D.  501;  reversing  on  this 
point:  S.  C.  21  Ch.  D.  685. 

A  lien  or  charge  on  lands  may  now  be  registered  under  the  York- 
shire Registries  Acts,  1884  (47  &  48  Vict.  c.  54)  which  enacts  that 
"  Where  any  lien  or  charge  on  any  lands  within  any  of  the  three 
Ridings  is  claimed  in  respect  of  any  unpaid  purchase-money  or  by 
reason  of  any  deposit  of  title  deeds,  a  memorandum  of  such  lien  or 
charge,  signed  by  the  person  against  whom  such  lien  or  charge  is 
claimed,  may  be  registered  by  any  person  claiming  to  be  interested 
therein  "  [such  memorandum  to  state  as  therein  mentioned]  "  and 
no  such  lien  or  charge  shall  have  any  effect  or  priorty  as  against  any 
assurance  for  valuable  consideration  which  may  be  registered  under 
this  Act,  unless  and  until  a  memorandum  thereof  has  been  registered 
in  accordance  with  the  provisions  of  this  section,"  sect.  7.  This  Act 
is  amended  and  partially  repealed  by  48  Vict.  c.  4,  and  48  &  49  Vict. 
c.  26. 

If  the  legal  estate  is  outstanding,  then,  as  the  second  purchaser 
has  only  an  equitable  interest,  subsequent  to  that  of  the  equitable 
lien,  the  maxim,  "  Qui  prior  est  temx)ore  iiotior  est  jure,''''  may,  as  in 
the  principal  case,  apply;  and  the  equitable  lien  will  have  preced- 
ence; Frere  v.  Moore,  8  Pri.  475. 

"Where,  however,  the  equity  of  a  second   purchaser  or  mortgagee 
having  only  an  equitable  interest  is  better  than  that  of  the  vendor 
claiming  a  lien  for  iinpaid  purchase  money,  as  for  instance  by  rea- 
son of  his  having  possession  of  the  title  deeds,  with  the  usual  receipt 
446 


JIACKRKTII  V.  SVMMOXS.  '•   389 

endorsed  such  purchaser  or  mortgagee  will  be  entitled  to  priority 
over  the  lien. 

This  subject  was  much  discussed  in  the  important  and 
leading  case  of  Rice  v.  Rice,  2  *Drew.  78.  There  certain  [  *  389  J 
leasehold  property  was  assigned  to  a  purchaser,  l>//  a  deed 
ivhich  recited  the  jmyment  of  the  icliole  jnirchase-viovey,  and  had  the 
usual  receipt  indorsed  on  ^7,and  the  title-deeds  were  drlicered  up  to  the 
purchase!'.  [A  purchaser  is  bound  to  take  notice  of  all  the  recitals 
in  the  deed  of  the  vendee  :  McAlpin  r.  Burnett,  23  Texas,  649; 
Hutchinson r.Patrick,22  Texas,3l8;  Kilpatrickr.  Kil{)atrick,23Miss. 
124;  Woodward  z;.  Woodward,?  B.  Mon.  116.]  Some  of  the  vendors  re- 
ceived no  part  of  their  share  of  the  purchase- money,  having  allowed 
the  payment  to  stand  over  for  a  few  days,  on  the  promise  of  the  pur- 
chaser then  to  pay.  The  day  after  the  execution  of  the  deed,  the 
purchaser  deposited  the  assignment  and  title-deeds  with  the  defen- 
dants, with  a  memorandum  of  deposit  to  secure  an  advance,  ?.nd  then 
absconding,withont  paying  either  the  vendors  or  the  equital)le  mort- 
gagees : — It  was  held  by  Sir  R.  T.  Kindersley,  V.-C,  that  the  defen- 
dants, the  equitable  mortgagees,  having  the  better  equity,  were  en- 
titled to  payment  out  of  the  estate  in  priority  to  the  claim  of  the 
vendors  for  their  lien.  "  In  a  contest,"  said  his  Honor,  "  between 
persons  having  only  equitable  interests,  priority  of  time  is  the 
ground  of  preference  last  resorted  to;  i.  e.,  a  Court  of  equity  will  not 
prefer  the  one  to  the  other,  on  the  mere  ground  of  priority  of  time, 
until  it  finds,  upon  an  examination  of  the  relative  merits,  that  there 
is  no  other  sufficient  ground  of  preference  between  them  ;  or,  in 
other  words,  that  their  equities  are  in  all  other  respects  equal;  and 
that  if  one  has,  on  other  grounds,  a  better  equity  than  the  other, 
priority  of  time  is  immaterial.  ...  So  far  as  relates  to  the  na- 
ture and  quality  of  the  two  equitable  interests,  abstractedly  consid- 
ered, they  seem  to  me  to  stand  on  an  equal  footiug  ;  and  this  I  con- 
ceive to  have  been  the  ground  of  Lord  Eldon's  decision  in  Mack- 
reth  V.  Symmons,  where,  in  a  contest  between  the  vendor's  lien  for 
unpaid  purchase-money,  and  the  right  of  a  person  who  had  subse- 
quently obtained  from  the  purchasers  a  mere  contract  for  a  mort- 
gage, and  nothing  more,  he  decided  in  favour  of  the  former,  as  be- 
ing prior  in  point  of  time  ...  If,  then,  the  vendor's  lien  for  un- 
paid purchase- money,  and  the  right  of  an  equitable  mortgagee  by 
mere  contract  for  a  mortgage,  are  equitable  interests  of  equal  worth 
in  respect  of  their  abstract  nature  and  quality,  is  there  anything  in 
the  special  circumstances  of  the  present  case  to  give  to  the  one  a 
better  equity  than  the  other?  One  special  circumstance  that  occurs 
is  this,  that  the  equitable  mortgagee  has  the  ])ossession  uf  the  title- 
deeds."  .  .  .  And  his  Honor,  after  referring  to  Foster  v.  Black- 
stone,  (1  My.  &  K.  307);  Stanhope  v.  Verney  (Butler's  Co.  Litt.  290 
b.  note  (1),' sect.  15;  2  Eden,  81);  3  Sngd.  Y.  &  P.  218;  r.nd.Vaun- 
drell  v.  Maundrell  (10  Yes.  271),  adds  :  '•  We  have  liere  ample  au- 
thority  for  the   proposition,   or  rule  of   equity,   that   as   between 

447 


*391  MACKRETII  V.  SYMMONS. 

[*390]  *  two  persons  whose  equitable  interests  are  precisely  of 
the  same   nature   and  quality,  and  in  that  respect  pre- 
cisely equal,  the  possession  of   the  deeds  gives  the  better  equity. 
And  applying  this  rule  to  the  present  case,  it  appears  to  me  that 
the  equitable  interests  of  the  two  parties  being,  in  their  nature  and 
quality,  of  equal  worth,  the  defendant,  having  possession  of  the 
deeds,  has  the  better  equity  ;  and  that  there  is,  therefore,  in  this 
case,  no  room  for  the  application  of  the  maxim,  '  Qui  prior  est  tem- 
pore potior  est  jure,''  which  is  only  applicable  where  the  equities  of 
fhe  two  parties  are,  in  all  other  respects,  equal.     I  feel  all  the  more 
confidence  in  arriving  at  this  conclusion,  inasmuch  as  it  is  in  ac- 
cordance with  the  opinion  expressed  by  Lord  St.  Leonards  in  his 
work  on  Vendors   and  Purchasers.     And  I  have  no  doubt,  that  in 
Mackreth  v.  Symmons,  if  the  equitable  mortgagee  had,  in  addition 
to  his  contract  for  a  mortgage,  obtained  the  title-deeds  from  his 
mortgagor,  Lord  Eldon  would   have  decided  in  his  favour."     And 
his  Honor,  after  guarding  against  the  supposition  that  he  meant  to 
express  an  opinion  that  the  possession  of  the  title-deeds  would,  in 
all  cases,  and  under  all  circumstances,  give  the  better  equity,  and 
after  referring  to  Allen  v.  Knight  (5  Hare,  272,  11  Jur.  527),  says: 
"  It  appears  to  me  that  in  all  cases  of  contest  between  persons  hav- 
ing equitable  interests,  the  conduct  of  the  parties  and  all  the  circum- 
stances, must  be  taken  into  consideration,  in  order  to  determine 
which  has  the  better  equity.     And  if  we  take  that  course  in  the 
present  case,  everything  seems  in  favour  of  the  defendant,  the  equit- 
able mortgagee.     The  vendors,  when  they  sold  the  estate,  chose  to 
leave  part  of  the  purchase-money  unpaid,  and  yet  executed  and  de- 
livered to  the  purchaser  a  conveyance  by  which  they  declared,  in 
the  most  solemn  and  deliberate  manner,  both   in  the  body  and  by 
a  receipt  indorsed,  that  the  whole  purchase- money  had  been  duly 
paid.     They  might  still  have  required  that  the  title-deeds  should 
remain  in  their  custody  with  a  memorandum,  by  way  of  equitable 
mortgage,  as  a  security  for  the   unpaid  purchase-money  ;  and  if 
they  had  done  so,  they  would  have  been  secure  against  any  subse- 
quent equitable  incumbrance  ;  but  that  they  did  not  choose  to  do, 
and  the  deeds  were  delivered  to  the  purchaser.     Thus  they  volunta- 
rily armed  the  purchaser  with  the  means  of  dealing  with  the  estate 
as  the  absolute,  legal  and  equitable  owner,  free  from  every  shadow 
of  incumbrance  or  adverse  equity.     In  truth,  it  cannot  be  said  that 
the  purchaser,  in  mortgaging  the  estate  by  the  deposit  of  the  deeds, 
has  done  the  vendors  any  wrong,  for  he  has  only  done   that  which 
the  vendors  authorised  and  enabled  him  to  do.     The  de- 
[  *  391  ]  fendant  who  afterwards  took  a  mortgage,  was  in  effect  *"  in- 
vited and  encouraged  by  the  vendors  to  rely  on  the  pur- 
chaser's title.     They  had  in  effect,  by  their  acts,  assured  the  mort- 
gagee that,  as  far   as  they  (the  vendors)  were  concerned,  the  mort- 
gagor had  an  absohite  indefeasible  title  both  at  law  and  in  equity." 
See  also  Wilson  v.  Keating,  4  De  G.  &  Jo.  588. 
448 


MACKRETir  V.  SVMMONS.  ''303 

It  may  bo  hero  mentionod  that  under  thn  54th  section  of  the  Con- 
veyancing and  Law  of  Property  Act,  1881  (44  &  45  Vict.  c.  41), 
which  applies  only  to  deeds  executed  after  the  commencement  of 
the  Act,  viz.,  from  and  immediately  after  the  31st  Dec,  1881,  a  re- 
ceipt for  consideration  money  in  the  body  of  the  deed  shall  be  suffi- 
cient, without  any  further  receipt  from  the  same  being  indorsed  on 
the  deed. 

And  under  the  55th  section,  which  also  applies  only  to  deeds 
executed  after  the  commencement  of  the  Act,  "A  receipt  for  con- 
sideration money  or  other  consideration  in  the  body  of  a  deed  or 
indorsed  thereon,  shall,  in  favour  of  a  subsequent  purchaser  not 
having  notice  that  the  money  or  other  consideration  thereby  ac- 
knowledged to  bo  received,  was  not  in  fact  paid  or  given,  wholly  or 
in  part,  be  sufficient  evidence  of  the  payment  or  giving  of  the  whole 
amount  thereof." 

The  assignees  of  a  bankrupt  will  be  affected  by  the  equitable 
lien,  although  they  may  have  had  no  notice  of  it;  for  it  is  a  clear 
principle  that  assignees  in  bankruptcy  take  subject  to  all  the  equi- 
ties attaching  to  the  bankri.pt:  Boivlcs  v.  Rogers,  G  Ves.  95,  cited 
in  note  («);  Ex  parte  Hanson,  12  Ves.  349,  Mil  ford  v.  Mitford,  9 
Ves.  99;  Grant  w  Mills,  2  V.  &  B.  300;  Ex  parte  Peake,  1  Madd. 
846.  [The  lien  prevails  against  assignees  in  bankruptcy,  also 
against  a  general  assignment:  Green  v.  Demoss,  10  Humph.  371; 
also  against  judgment  creditors:  Rodgers  v.  Bowner,  45  N.  Y.  379; 
Thomas  v.  Kennedy,  24  la.  397;  Bank  v.  Campbell,  2  Rich.  Eq.  (S. 
C.)  179;  Birkhard  v.  Edwards,  11  Ohio,  84.]  So,  also,  will  the  as- 
signees under  a  general  assignment  for  the  benefit  of  creditors: 
Faivell  V.  Heelis,  Amb.   724;  and  see  1  Bro.  C.  C.  302. 

"Where  a  vendor  took  a  security  for  his  purchase-money,  as,  for 
instance  a  bond,  he  was  not  permitted  to  sue  at  law  on  the  bond  and 
in  equity  to  enforce  the  lien  at  the  same  time,  but'was  compelled  to 
elect  in  which  court  be  would  proceed:  Barker  v.  Smark,'d  Beav. 
64;  Nairn  v.  Prowse,  6  Ves.  752. 

A  vendor's  lien  for  unpaid  purchase -money  not  being  an  express 
trust,  his  right  to  recover  it  may  be  barred  by  the  40th  section  of 
the  Statute  of  Limitations,  3  &"4  Will.  4,  c.  27,  after  twenty  years 
from  the  day  fixed  for  payment  (Toft  v.  Stephenson,  7  Hare,  1);  but 
a  case  may  bo  taken  out  of  the  operation  of  the  statute  by  a  suffi- 
cient acknowledgment  (S.  C,  1  De  G.  Mac.  &c  G.  28;  5  De  G.  Mac. 
&  G.  735);  and  thereupon,  payment  of  the  purchase-money  remain- 
ing unpaid,  and  arrears  of  interest  may  be  enforced  in  equity:  lb. 

But  by  the  Real  Property  Limitation  Act,  1874  (37  & 
38  Vict.  c.  57),  which  came  into  *  operation  on  the  1st  of  [  *  392  ] 
January,  1879,  the  right  to  recover  may  be  barred  at  the 
end  of  twelve  years,  sec.  8. 

The  vendor's  lien  for  unpaid  purchase  money  was  held  not  to  be 
a  "  chai'ge  by  way  of  mortgage  "  within  the  meaning  of  "  Locke 
King's  Act"  (17  &  18  Vict.  c.  113);  hence  the  personal   estate  of 

29  WHITE  ox   KQUITY.  449 


*  303  MACKRETII  V.  SYMMOXS. 

the  deceased  purchaser,  notwithstanding  that  Act,  remained^prim- 
arily  liable  for  its  payment:  Hood  v.  Hood,  5  W.  R.  (N.  S.)  '747;  3 
Jur.  (N.  S.)  084,  and  Barnewell  v.  Iremonger,  1  Drew.  &  Sm.  255, 
but  now,  by  30  k  31  Vict.  c.  G9,  the  word  '•  mortgage,"  in  the  con- 
struction of  these  statutes,  has  been  extended  to  any  lien  for  unpaid 
purchase-money  upon  any  lands  or  hereditaments  purchased  by  a 
testator.  [The  lien  for  the  purchase  money  is  not  an  estate  in 
land  nor  is  it  a  charge  on  the  land;  but  it  is  an  equity  between  the 
parties,  their  representatives  or  privies  in  law  or  estate  to  be  resorted 
to  in  case  of  failure  of  payment  by  the  vendee:  "  Perry  on  Trusts, 

Sec.  238.] 

As  the  enlarged  meaning  of  the  word  "  mortgage  "  was  only 
given  in  the  case  of  lands  purchased  by  a  testator,  when  lands  were 
purchased  by  an  intestate,  his  personal  estate  remained  primarily 
liable  to  discharge  the  lien  for  unpaid  purchase-money  {Harding  v. 
Harding,  13  L.  R.  Eq.  493;  Hudson  v.  Cook,  26  L.  T.  Rep.  (N.  S.) 
181,  overriiling  Evans  v.  Poole,  49  L.  T.  (N.  S.)  50),  until  by  40  & 
41  Vict.  c.  34,  the  primary  liability  of  the  personal  estate  of  an  in- 
testate to  discharge  a  lien  for  unpaid  purchase  money  is  abolished  in 
the  case  of  persons  dying  intestate  after  the  31st  of  December,  1887. 
Vendee's  Lien  for  prematurely  paid  Purchase-Money.'] — If  the 
purchase-money,  or  part  of  it,  has  by  way  of  deposit  or  otherwise, 
been  paid  prematurely,  before  a  conveyance,  and  the  contract  has 
been  rescinded,  or  cannot  be  enforced  through  want  of  title  or  other 
default  of  the  vendor,  and  the  vendee  properly  refuses  to  complete, 
the  vendee  will  have  a  lien  upon  the  estate  in  the  hands  of  the 
vendor.  See  principal  case  ante  p.  367.  Burgess  v.  Wheate,  1 
Wm.  Blacks.  150;  Lacon  v.  Mertins,  3  Atk.  1;  Wythes  v.  Lee,  3 
Drew.  396;  Aberaman  L^omvorks  v.  Wickens,  4  L.  R.  Ch.  App.  101, 
and  also  upon  the  title  deeds  thereof,  Oxenham  v.  Esdalie,  2  Y.  & 
J.  493;  3  lb  262;  Esdaile\.  Oxenham,  3  B.  &  Cr.  225. 

The  vendee's  lien  extends  also  to  interest  on  his  purchase-money 
(Torrance  v.  Bolton,  14  L.  R.  Eq.  124,  136;  8  L.  R.  Ch.  App.  118) 
and  costs  of  suit  by  himself  or  the  vendor  to  compel  performance  of 
the  contract  (lb.;  and  see  Middleton  v.  Magnay,  2  H.  &  M.  233; 
Turner  v.  Marriott,  3  L.  R.  Eq.  744;  Thomas  v.  Buxton,  8  L.  R.^ 
Eq.  120),  but  not  for  damages  or  part  of  the  damages  which  one  of 
the  contracting  parties  may  be  entitled  to  as  against  the  other  if 
he  repudiates  the  contract,  Wilson  v.  Church,  13  Ch.  D.  35,  per 
Cotton,  L.  J. 

The  vendee  will  have  a  lien  for  prematurely  paid  pur- 
[  *  393  ]  chase-money  not  only  as  against  the  vendor,  *  but  as 
against  a  subsequent  mortgagee  who  had  notice  of  the 
payments  having  been  made:  Watson  v.  Rose,  10  W.  R.  (V.-C.  K), 
755;  S.  C,  nom.  Rose\.  Watson,  10  H.  L.  Ca.  672,)  even  although 
some  of  the  payments  are  in  pursuance  of  the  contract  made  after 
the  mortgage,  at  any  rate  if  the  mortgagee  gives  no  notice  of  any 
intention  to  interfere  with  the  contract. — lb. 
450 


,  MACKRETII  V.  SYM3I0NS.  *  304 

It  seems,  that  where  a  purchaser  pnunaturely  pays  part  of  the 
purchase-money  to  a  mortgagee  selling  under  a  power  of  sale,  ho 
would  have  a  lion  upon  th(^  interest  of  the  mortgagee.  "There  is," 
said  Kinderslei/,  V.-C,  "certainly  a  ground  of  equity  for  that  ;  for 
though  that  which  was  the  subject  of  sale  was  a  fee-aim i)le,  there  is 
justice  in  saying  if  the  vendor  is  entitled  to  some  lesser  interest,  to 
the  extent  of  that  interest  the  purchaser  is  entitled  to  the  lien."  See 
Wythes  v.  Lee,  3  Drew.  400;  Burgess  v.  Wheate,  1  Eden,  211 ;  Lacon 
V.  Mertins,  3  Atk.  1 ;  Oxenham  v.  Esdaile,  2  Y.  &  J.  493;  3  Y.  &  J. 
262.  He  would  also  have  a  lien  upon  the  interest  of  parties  for  whom 
the  mortgagee  was  a  trustee,  Wythes  v.  7>c,  3  Drew.  4()0. 

In  the  event  of  a  sale  by  the  vendee  of  an  estate  having  a  lien  upon 
it  for  prematurely  paid  purchase-money,  the  sub- vendee  whc  has  also 
paid  his  jnirchase-nionry  or  part  of  it  prematurely  will,  in  case  the 
first  purchase  is  rescinded,  have  a  lien  upon  the  sum  in  respect  of 
which  the  vendee  had  a  lien  upon  the  estate.  Aberaman  Ironworks 
V.  Wickens,  4  L.  R.  Ch.  App.  101. 

Where  a  person  has,  under  the  mistaken  supposition  that  he  was 
entitled  to  an  estate  under  a  contract,  paid  the  purchase-money  and 
taken  a  conveyance  to  himself,  both  he  and  a  purchaser  from  him 
with  notice  of  the  title  of  the  I'eal  owner  will  be  entitled  as  against 
him  to  a  lien  in  respect  of  the  purchase  money  and.interest,  and  <^n 
the  moneys  expended  in  lasting  improvements,  accounting  however 
in  the  usual  way  for  rents.  See  Neesom  v.  Clarkson,  4  Hare.  97. 
There  a  widow,  entitled  under  her  late  husband's  will  to  an  estate 
which  he  had  contracted  to  purchase  in  foe,  but  had  not  paid  for, 
married  again,  and  her  second  husband  supposing  himself  to  be  en- 
titled to  the  estate,  paid  the  purchase-money.  The  second  husband 
sold  the  estate  to  a  purchaser  who  was  held  to  have  notice  that  the 
husband  was  only  entitled  J»?'e  iixoris.  And  on  the  death  of  the 
wife  without  issue  of  the  marriage,  upon  a  bill  filed  by  the  heir-at- 
law  of  the  wife  It  was  held  by  Wigram,  V.-C,  that  the  purchaser 
fi'om  the  second  husband  was  only  entitled  to  a  lion  in  respect  of  the 
piirchase-monoy  paid  by  him,  and  the  moneys  expended  in 
lasting  improvements  from  the  date  of  the  purchase  *  with  [  *394] 
interest.  In  other  respects  the  purchaser  being  treated  as 
a  mortgagee  in  possession,  being  debited  with  rents  received,  or 
which  might,  but  for  wilful  default,  have  been  received  during  the 
same  period.  See  also  Parkinson  v.  Hanhury,  2  L.  R.  Ho.  Lo.  1  ; 
Maddison  v.  Chapman,  1  J.  &  H.  470. 

Where  a  trustee  has  purchased  an  estate  partly  with  his  own  money 
and  partly  out  of  trust  funds  he  will  have  a  lien  on  the  estate  sub- 
ject to  the  amount  of  the  trust  funds  laid  out  in  its  purchase;  In  re 
Pumfrey,  The  Worcester  City  and  County  Banking  Co.  v.  Blick,  22 
Ch.  D.  255;  and  see  Phayre  v.  Peree,  3  Dow,  116;  Mafhias  v. 
Mathias,  3  Sm.  &  G.  552. 

A  person  who  pursuant  to  an  agreement  expends  money  upon  pro- 
perty agreed  to  be  leased   to  him,   and  which  the  proposed  lessor 

451 


*394  MACKRETH  ?,'.  SYMMONS. 

agrees  to  repay  on  bis  failure  to  grant  a  lease,  will  have  a  lien  on 
the  interest  of  the  proposed  lessor  in  the  property,  upon  his  being 
unable  to  grant  a  lease  for  want  of  title:  Middleton  v.  Magnay,  2  H. 
&  M.  233. 

The  lien  of  the  vendee  for  prematurely  paid  purchase-money  will 
not  exist  where  he  has  by  his  own  default  abandoned  the  contract 
(Dinn  v.  Grant,  5  De  G.  &  Sm.  451;  Ex  parte  Barrell,  In  re  Parnell, 
10  L.  R.  Ch.  App.  512),  nor  where  the  contract  is  by  statute  illegal 
(Eiving  v.  Osbaldiston,  2  My.  &  Cr.  88),  nor  where  the  purchaser 
is  by  law  disqualified  from  holding  real  estate  (Harrison  v.  Soiith- 
cote,  2  Yes.  389,  393).  Secus,  if  the  purchaser  repudiates  the  con- 
tract where  the  vendor  cannot  make  a  good  title,  or  where  the  sale 
constitutes  a  breach  of  trust  (  Wythes  v.  Lee,  3  Drew.  396). 

[^Doctrine  of  Vendoy^^s  Lien  for  Purchase  Money  Restated. — If  a 
vendor  delivers  possession  of  an  estate  to  the  purchaser  without  hav- 
ing received  the  purchase  money,  equity  gives  the  vendor  a  lien 
upon  the  land  to  the  amount  of  the  unpaid  purchase  money,  although 
there  was  no  special  agreement  to  that  eifect,  and  whether  the  estate 
has  been  conveyed  or  only  contracted  to  be  conveyed.  This  doctrine 
has  not  been  uniformly  followed  throughout  the  United  States,  see 
note  number  1. 

It  can  be  readily  seen  that  between  the  parties  this  lien  is  founded 
on  natural  justice,  Inst.  Lib.  2,  tit.  1,  Sec.  41.  It  exists  notwith- 
standing that  the  deed  recites  or  acknowledge  that  the  purchase 
money  has  been  paid,  if  in  point  of  fact  it  has  not  been  paid. 

Much  of  the  litigation  upon  vendor's  lien  has  arisen  over  the 
question,  whether  the  lien  has  been  Avaived  or  not,  when  the  vendor 
takes  security  for  the  purchase  money;  the  rule  appears  to  be  that 
if  the  security  taken  is  inconsistent  with  the  continuance  of  the 
charge,  the  lien  is  at  an  end,  but  the  question  in  each  particular  ca=;e 
whether  the  lien  has  been  relinquished  can  only  be  determined  by 
special  circumstances;  the  questioQ  is  always  one  of  intention  to  be 
collected  from  circumstances  which  have  taken  place. 

If  one  of  several  purchasers  pays  the  whole  of  the  purchase 
money,  he  does  not  thereby  secure  a  lien  on  his  co-purchaser's 
shares:  Glasscock  v  Glasscock,  17  Texas,  480.  Nor  does  a  lien 
accrue  to  a  third  person  who  loans  the  purchase  money  to  the  vendee 
and  takes  his  note  therefor:  Skeggs  v.  Nelson,  25  Miss.  88  ; 
Stansell  v.  Roberts,  13  Ohio,  148;  Crane  v.  Caldwell,  14  111.  468. 

A  lien  at  common  law  is  a  right  which  is  inseparable  from  the 
article  on  which  the  lien  is  claimed  to  exist,  but  in  equity  it  may 
exist  wholly  independent  of  possession.  The  vendor's  lien  for  un- 
paid purchase-money  does  not  come  into  actual  existence  until  a  bill 
has  been  filed  to  assert  it.] 


452 


NOYS  V.  MORDAUNT.  *  395 


*  NO YS  V.  MORDAUNT.  [  *  395  ] 


De  Term.  S.  JIIL,  Feb.  Wi,  1706. 

[reported  2    VEEN.  581.] 

[S.  a,  Eq.  Ca.  Ah.  273,  pi  3;  Prec.  Cli.  265;  Gilb.  Eq.  Rep.  2.] 

Election.] — A.  having  two  daughters,  B.  and  C,  devises  fee- simple 
lands  to  B.,  and  lands  xchich  icere  settled  upon  him  in  tail  to  G. 
If  B.  will  claim  a  share  of  the  entailed  lands  under  the  settle- 
ment, she  must  quit  the  fee -simple  lands;  for  the  testator  having 
disjjosed  of  the  whole  of  his  estate  amongst  his  children,  ichat  he 
gave  them  ivas  upon  the  implied  condition  they  should  release  to 
each  other. 

John  Everard,  having  two  daughters,  in  1G8G  makes  his  will,  and 
devises  to  Margaret,  his  eldest  daughter,  his  lands  in  Beeston,  and 
800Z.  in  money;  to  Mary,  his  second  daughter,  his  lands  in  Stan- 
born  and  Broom,  and  1300Z.  in  money,  provided  and  on  condition 
she  released,  conveyed,  and  assured  Beeston  lands  to  her  sister 
Margaret;  and  devised  to  his  said  second  daughter  1300/.  in 
money  [u).  Provided,  if  ho  should  have  a  son,  what  was  devised 
to  his  daughters  to  bo  void;  and  ia  such  case  gave  to  Margaret 
1200/.,  and  to  Mary  1000/.  Provided,  if  ho  should  have  another 
daughter,  then  he  gave  the  800/.  devised  to  Margaret  to  such  after- 
born  daughter;  and  the  lands  at  Stanborn  and  Broom,  and  the 
1300/.  devised  to  Mary,  the  second  daughter,  to  the  said  Mary  and 
such  after-born  daughter,  e^jually  between  them. 

He  shortly  afterwards  died,  and  left  his  wife  enceinte  of  a 
daughter,  Elizabeth.  Mary  married  Higgs,  and  died  without  issue, 
not  having  given  any  release  to  Margaret,  her  sister,  according  to 
the  will. 


(wl  This  last  bequest  of  £1300  in  money  seems  to  be  a  repetition  of  the  first 
bequest  of  that  sum  with  the  hinds  iu  Stanborn  and  Broom. 

453 


*396  NOYS  V.  MORDAUNT, 

Elizabeth  claimed  not  only  the  lands  devised  to  her  by 
[  *  396]  *  the  will,  and  a  moiety  of  what  was  devised  to  her  sister 
Mary,  but  also  a  moiety  of  the  Beeston  lands,  devised  to 
Margaret:  the  same,  oa  the  testator's  marriage,  being  settled  on 
himself  for  life,  and  his  wife  for  her  jointure,  and  to  the  first  and 
other  sons,  and,  in  default  of  issue  male,  to  the  heirs  of  his  body. 
Question  was,  whether  she  should  be  at  liberty  so  to  do,  or 
ought  not  to  acquiesce  in  the  will,  or  renounce  any  benefit  thereby. 

Lord  Keepek  Cowper.  — In  all  cases  of  this  kind,  where  a  man 
is  disposing  of  his  estate  amongst  his  children,  and  gives  to  one 
fee-simple  lands,  and  to  another  lands  entailed  or  under  settle- 
ment (v)  it  is  upon  an  implied  condition  that  each  party  acquit  and 
release  the  other;  especially  as  in  this  case,  where,  plainly,  he  had 
the  distribution  of  his  whole  estate  under  his  consideration,  and 
has  given  much  more  to  Elizabeth  than  what  belonged  to  her  by 
the  settlement,  and  had  it  in  his  power  to  cut  off  the  entail. 

[v)  That  is  to  say,  entailed  or  settled  upon  the  one  to  whom  the  fee-simple 
lands  are  given,  or  upon  such  one  jointly  Avith  the  other. 


454 


STREATFIELD  V.  S^RKATFIELD.  *  SOji 


*STREATPIELD  v.  STREATFIELD.      [-307  ) 

De  Term,  S.  Hil.,  1735. 

[reported  oas.   temp.  talb.   170.] 

Election.] — The  ancestor,  by  articles  previous  to  his  marriage,  agrees 
to  settle  certain  lands  to  the  use  of  himself  and  his  intended  wife, 
remainder  to  the  issue  of  the  marriage  in  the  usual  manner.  After 
marriage  he  makes  a  deed,  not  pursuant  to  the  articles,  and  lias 
a  son  and  two  daughters;  and  iqjon  the  marriage  of  Ids  son,  set- 
tles other  lands,  in  consideration  of  this  last  marriage,  in  the 
usual  manner,  and  levies  a  fine  of  the  former  lands  to  the  use  of 
himself  in  fee;  and  then  makes  his  will,  and  devises  part  of  the 
former  lands  to  his  two  daughters,  and  the  rest  of  his  real  estate 
to  trustees,  to  the  tise  of  his  grandson  for  life,  with  usual  re- 
mainders; and  icith  direction,  out  of  the  profits  to  educate  the 
grandson,  and  to  place  out  the  rest  of  the  profits  to  be  paid  to  the 
grandson  at  tiventy-one  years  of  age;  and  if  he  does  not  attain 
that  age,  to  be  paid  to  his  said  daughters,  their  executors,  &c.  The 
grandson  is  not  to  be  bound  by  the  deed,  tvhich  did  not  pursue  the 
articles,  but  then  he  shall  make  his  election  when  he  comes  of  age, 
and  if  he  chooses  to  take  lands  which  ought  to  have  been  settled, 
the  daughters  {his  aunts)  shall  be  reprised  out  of  the  lands  de- 
vised to  him. 

Thomas  Streatfield,  the  plaintiff's  grandfather,  by  articles  previ- 
ous to  his  marriage,  May  31st,  1677,  agreed  to  settle  lauds  in  Seven- 
oake  [in  the  county  of  Kent]  to  the  use  of  himself  and  Martha, 
his  intended  wife,  for  their  lives  and  the  life  of  the  survivor;  and 
after  the  survivor's  decease,  to  the  use  of  the  heirs  of  the  body  of 
him  the  said  Thomas  on  his  wife  begotten,  with  other  remainders 


over. 


*  The  marriage  soon  after  took   effect,   and  by   deed,  [  *  398  ] 
dated  April   5th,  1098,  reciting  the  foresaid  articles,  he 
settled  his  lands  at  Scvenoake  to  the  use  of  himself  and  his  wife, 

455 


*  399  STPvEATFIELD  V.  STREATFIELD, 

for  their  lives,  and  the  life  of  the  longest  liver  of  them,  without 
impeachment  of  waste  during  the  life  of  Thomas,  and  after  their 
decease,  to  the  use  of  the  heirs  of  the  body  of  the  said  Thomas, 
on  the  said  Martha  to  be  begotten;  and  for  want  of  such  issue,  re- 
mainder to  the  right  heirs  of  Thomas.  They  had  issue,  Thomas 
(their  only  son),  and  two  daughters,  Margaret  and  Martha. 

In  the  year  1716,  upon  the  marriage  of  Thomas,  the  son,  the 
father  settled  other  lands  (of  which  he  was  seised  in  fee),  of  the 
yearly  value  of  355L,  to  the  use  of  his  son  for  life,  remainder  to 
the  daughters  of  the  marriage,  remainder  in  fee  to  the  son,  with  a 
power  to  raise  2000^.  for  younger  children. 

After  the  son's  death  [leaving  a  son  called  Thomas],  Thomas,  the 
father,  in  the  year  1723,  levied  a  fine  of  the  lands  comprised  in  the 
deed  of  1698  to  the  use  of  himself  in  fee,  and  in  the  year  1725 
made  his  will,  and  thereby  devised  part  of  those  lands  (iv)  to  his 
two  daughters,  Margaret  and  Martha;  "And  also  all  other  his 
manors,  messuages,  lands,  tenements,  and  hereditaments  whatsoever, 
either  in  possession,  reversion,  or  remainder,  not  thereinbefore 
given  or  disposed  of,  situate  in  the  counties  of  Kent,  Surrey,  or 
elsewhere,  to  trustees  in  trust  for  the  plaintifp  Thomas,  his  grand- 
son, for  life;  remainder  to  his  first  and  other  sons  in  tail  male;  re- 
mainder to  his  daughters  in  tail;  remainder  to  Margaret  and  Martha, 
with  several  remainders  over."  Then  comes  this  clause:  "And 
my  v/ill  and  meaning  farther  is,  and  I  do  hereby  authorise  and  ap- 
point the  trustees,  and  the  survivor  of  them,  to  receive  the  rents 
and  profits  of  the  said  estates  to  them  devised,  and  out  of  the  same 
to  allow  and  expend,  for  the  education  of  my  grandson  Thomas,  so 
much  as  they  shall  think  fit  during  his  minority;  and  that  the  trus- 
tees shall  place  out  at  interest  such  monies  arising  out  of  the  rents 
and  profits  of  the  said  estates;  which  said  monies,  with 
[  *  399  J  interest  arising  therefrom,  my  will  is  *be  paid  to  my 
grandson  Thomas  at  his  age  of  twenty-one  years,  if  he 
so  long  live;  or,  in  case  he  dies  before  that  age,  then  that  the  same 
shall,  be  paid  to  my  two  daughters,  Margaret  and  Martha,  their 
executors,  &c." 

The  testator  died  in  the  year  1730. 

The  question  was,  whether  the  settlement  in  1698  was  a  proper 
execution  of  the  articles  of  1677  ?  and  if  not,  whether  the  general 

{w)  i.  e.,  viz.  the  lands  at  Sevenoake  in  Kent. 

456 


STREATFIELD  V.   STREATFIELD.  *  400 

devise  to  the  plaintiff  Kbould  bo  taken  as  a  satisfaction  for  what  be 
was  entitled  to  under  tbo  articles  of  1077  ? 

Mr.  Solicitor-General,  Mr.  Broivne,  Mr.  Fazakerlcij,  and  Mr.  Noel 
argued  for  tbe  plaintiff,  tbat,  altbougb  in  a  will  or  articles  executed, 
Tbomas  tbe  grandfatber  would  bave  been  tenant  in  tail,  yet  tbe 
articles  of  1077  being  but  executory,  tbis  Court  would  interpose,  by 
carrying  tbem  into  execution  in  tbe  strictest  manner,  and  not  leav- 
ing it  in  bis  power  to  destroy  tbe  uses  as  soon  as  raised.  Tbat,  ac- 
cording to  tbat  rule,  tbe  deed  of  1098  was  certainly  no  execution  of 
tbe  articles  in  equity;  for,  tbougb  it  was  in  tbe  very  words,  yet  did 
it  not  at  all  answer  tbe  intent  of  tbo  articles,  and,  came  tberefore, 
witbin  tbe  rules  of  Trevor  and  Trevor''s  case,  1  Eq.  Ca.  Abr.  887  {x). 

Tbat  tbe  settlement  in  1710,  upon  Tbomas  tbe  son's  marriage 
(altbougb  it  was  of  lands  of  greater  value  tban  tbose  contained  in 
tbe  articles),  could  never  be  tbougbt  a  satisfaction  for  tbem,  tbere 
being  no  reference  at  all  in  it  to  tbo  articles,  and  it  being  made  only 
in  consideration  of  tbe  son's  marriage,  and  for  settling  a  jointure 
upon  bis  wife,  and  making  a  competent  provision  for  tbe  issue;  all 
wbicb  are  new  considerations,  no  way  relative  to  tbe  articles:  and 
wbere  tbere  is  an  express  consideration  mentioned  in  a  deed,  tbere 
can  be  no  averment  of  anotber  not  contained  tberein  {y). 

Tbat  notbing  could  be  taken  for  a  satisfaction  but  wbat  was  in 
its  nature  agreeable  to  tbo  tbing  wbicb  was  to  be  done,  was  bold  in 
Lechmere  and  Lady  Lechmere's  case  {z).  But,  in  tbis  case,  Tbomas 
tbe  son  was,  by  tbe  articles,  to  bave  been  tenant  in  tail;  but  by  tbe 
settlement  in  1710,  be  was  to  be  but  tenant  for  life:  wbicb 
was  giving  bim  a  *  less  estate  for  a  greater,  and  conse-  [  *  400  ] 
quently  not  to  be  deemed  a  satisfaction  witbout  a  special 
acceptance  of  it  as  sucb,  according  to  tbe  rule  in  PinueVs  case,  5 
Co.  117,  wbere  it  is  beld  tbat  payment  of  a  lesser  sum  can  never  be 
a  satisfaction  for  a  greater,  unless  upon  a  special  circumstance 
sbowing  tbo  intent,  as  payment  at  an  earlier  day,  &c.  Tbat  tbe 
will  could  no  more  be  taken  for  a  satisfaction  tban  tbe  settlement, 
and  upon  tbo  same  reasons;  for,  by  it,  tbe  plaintiff  is  no  more  tban 
tenant  for  life,  and  even  tbat  not  absolutely,  tbo  prolits  being  di- 
rected by  tbe  testator  to  be  accumulated  until  tbo  plaintiff  attains 
bis  age  of  twenty-one,  and  tben  to  be  paid  to  bim;  but  if  be  dies 


(x)  1  P.  Wms.  f)22  S.  C. 

{>/)  Dver,  146,  b.  71. 

(2)  Lechmere  v.  Lechmere.  Ca.  t.  Talb,  80  ;  S.  C.  3  P.  Wms.  211. 

457 


*  401  STREATFIELD  V.   STREATFIELD. 

before  thai;  age,  they  are  given  away  to  the  testator's  daughters; 
and  when  he  does  arrive  at  that  age,  he  is  to  be  but  barely  tenant  for 
life,  and  even  not  that  without  impeachment  of  waste;  besides,  if 
the  will  be  construed  a  satisfaction,  as  against  the  plain tifP,  so  it 
must  likewise  be  as  to  all  the  others  claiming  under  the  articles; 
whereas,  the  plaintiff's  sisters,  who  were  entitled  under  the  articles, 
can  never  take  anything  under  this  will,  but  are  wholly  excluded. 

The  general  devise  of  all  his  manors,  lands,  &c.,  in  possession,  re- 
reversion,  or  remainder,  will  not  alter  the  case;  for  where  the  testa- 
tor hath  estate  sufQcient  to  satisfy  such  general  words,  he  shall 
never  be  construed  to  have  intended  to  pass  that  which  he  had  no 
right  to  dispose  of,  and  the  giving  of  which  would  work  a  wrong. 
That  he  had  no  right  to  dispose  of  the  lands  contained  in  the  art- 
icles, is  evident  from  what  hath  been  already  said;  and  had  not  this 
been  upon  his  own  marriage,  but  in  any  other  settlement,  he  had 
been  a  trustee  for  his  son,  and  then  had  made  his  will  in  the  same 
words  that  he  hath  done  here,  surely  that  trust  estate  would  never 
have  passed;  and  there  is  no  difference,  whether  the  trust  be  ex- 
pressed, or  whether  it  arises  by  implication  of  equity.  It  would  be 
an  absurdity  to  construe  these  words  to  pass  away  a  third  person's 
estate.     A  grant  of  all  one's  goods  will  not  pass  those  which  he  hath 

in  auter  droit:     So,  if  he  had  had  a  mortgage  in  fee,  such 
[  *401  ]   general  words  would  *  not  have  passed  it  from  the  devisee 

of  the  personal  estate  to  the  devisee  of  the  land.  In  Rose 
and  BartleWs  case,  Cro.  Car.  292,  a  general  devise  of  all  his  lands 
and  tenements,  having  both  freehold  and  leasehold,  was  held  to  pass 
the  freehold  lands  only  (a).  And,  in  Harivood  and  Child's  case, 
heard  by  the  present  Lord  Chancellor,  March  18,  1734,  a  devise  of 
all  his  lands  for  payment  of  debts,  having  both  freehold  and  copy- 
hold, but  no  surrender  made  of  the  copyhold  to  the  use  of  his  will, 
was  held  not  to  pass  the  copyhold.  Nor  can  the  cases  of  Duffield 
V.  Smith,  2  Vern.  258;  Noys  v.  Mordaunt,  2  Vern.  581;  be  objected: 
for,  in  the  former,  the  decree  was  reversed,  upon  account  of  the 
sister's  being  heir-at-law,  and  disinherited,  which  is  the  present 
case;  (for  here  they  would  take  a  beneficial  interest  from  the  plain- 
tiff, who  was  heir-at-law  to  his  grandfather,  and  give  him  but  a  very 
small  one  in  its  room;)  and,  in  the  latter  case,  the  father  being 
tenant  in  tail  of  part,  had  power  to  bar  it  by  fine;  in  which  respect 
he  might  well  be  looked  upon  as  a  proprietor  of  the  w^hole;  but  if  he 
{a)  See  now,  1  Vict.  c.  26,  s.  6. 

458 


STREATFIELD  V.   STREATFIELD.  *  402 

be  decreed  to  make  liiH  election,  it  must  bo  done  presently,  for  then 
it  is  that  he  is  to  take;  whereas,  he  cannot  by  law  make  his  elec- 
tion, being  but  an  infant;  and  if  so,  the  court  must  compel  him  to 
do  that  which  the  law  disables  him  from  doing. 

Mr.   Attorney- General,  Mr.  Strange,  and  Mr.   Peere    Williams, 

argued  for  the  defendant,  that  this  Court  will  not,  in  all  cases  what- 
ever, decree  a  specific  performance;  but  woiild,  in  some  particular 
cases,  leave  the  party  to  his  remedy  at  law  upon  the  covenant:  that 
these  articles  were  made  so  long  ago  as  in  1077,  and  Thomas,  the 
son,  who  was  the  person  entitled  to  have  them  carried  into  execu- 
tion, lived  until  1722,  forty- five  years  after,  without  ever  desiring  to 
have  them  executed;  and  that  the  intent  of  those  articles  did  not 
seem  to  go  any  further  than  the  settling  the  jointure  on  the  wife, 
and  the  making  Thomas,  the  grandfather,  tenant  in  tail,  the  words 
being  to  provide  for  the  ivife,h\\\.  no  mention  made  of  the 
issue;  but,  *  lohoever  comes  into  equity  must  do  equity ;  and,   [  *402  ] 
therefore,  if  the  plaintiff  would  take  advantage  of  those 
articles,  he  must  make  a  compensation  for  it  out  of  the  will,  which 
gives  him  an  estate  upon  a  plain  supposal  that  he  shall  take  nothing 
by  the  articles;  but  shall  never  be  at  liberty  to  take  a  great  benefit 
under  the  will,  and  waive  that  part  which  makes  against  him  to  the 
prejudice  of  a  third  person.      The  whole  will   must  be   acquiesced 
under,  or  no  part  of  it  at  all,  according  to  the  resolution  in  Noys  and 
Mordaunfs  case  (b) ;  which  went  upon  the  reason  of  an  entire  com- 
pliance with  the  testator's  intent  in  taking  entirely  under  the  will, 
and  not  upon  the  supposed  reason  of  his  being  proprietor  by  having 
it  in  his  power  to  levy  a  fine.     The  like  resolution  was  in  the  case 
of  Hearne  v.  Hearne,  2  Vern.  555,  in  that  of  Coicper  v.  Cotton,  Feb- 
ruary 16,  1731  (c),  at  the  Rolls:  where  a  freeman  of  London  de- 
vised his  estate  to  trustees  for  the  raising  6000Z.  for  his  four  daugh- 
ters, and  made  a  disposition  of  the  surplus,  it  was  held  that  they 
should  stand  either  by  the  will  or  by  the  custom;  and  if  by  the  for- 
mer, that  they  should  not  defeat  the  devise  over.     That,  in  cases 
where  general  words  in  a  will  had  been  restrained  from  passing  all 
which  the  testator  had,  it  hath  been  upon  the  testator's  intention 
manifestly  appearing  in  the  will  itself,  not  to  pass  so  much  as  the 
generalty  of  his  words  would  comprehend;  but,  in  the  present  case> 

[h)  Ante,  p.  367. 

(c)  Cowper  v.  Scott,  3  P.  Wins.  123. 

459 


*  403  STREATFIELD  V.   STREATFIELD. 

his  intent  plainly  appears  to  pass  all:  nor  will  that  intent  be  satis- 
fied by  saying,  that  he  had  a  reversion  of  the  lands  comprised  in  the 
articles,  since  he  would  have  been  tenant  in  tail  under  the  articles, 
and  only  for  life  under  the  will. 

LoKD  Chancellor  Talbot. — It  cannot  be  doubted  but  that,  upon 
application  to  this  Court  for  the  carrying  into  execution  the  articles 
of  1677,  the  Court  would  have  decreed  it  to  be  done  in  the  strictest 
manner,  and  would  never  leave  it  in  the  husband's  power  to  defeat 
and  annul  everything  he  had  been  doing:  and  the  nature  of  the  pro- 
visioa  is  strong  enough  for  this  purpose,  without  any  express 
words,  and  I  must,  therefore,  consider  what  was  the 
[*  403  J  *  operation  of  the  deed  of  1698,  which  is  declared  to  be  in 
performance  of  the  true  intent  and  meaning  of  the  articles. 
If  it  be  so,  all  is  well;  but  if  it  be  not,  it  only  shows  that  the  parties 
intended  it  so  but  were  mistaken.  So  was  the  case  of  IVest  v.  Er- 
rissey  (d),  where  the  articles  were,  by  the  House  of  Lords,  decreed 
to  be  made  good;  and  the  same  must  be  done  in  this  case,  if  noth- 
ing intervenes  to  prevent  it. 

The  settlement  in  1716,  whereby  the  grandfather  settled  other 
lands  upon  his  son's  marriage,  has  been  called  a  satisfaction  for 
those  articles;  but  to  me  it  appears  neither  an  actual  satisfaction 
nor  to  have  been  intended  as  such.  The  grandfather  had  done  that 
in  1698,  which  Le  apprehended  to  be  a  satisfaction  for  the  articles; 
but  this  deed  proceeds  upon  considerations  quite  difPerent  from 
those  of  the  articles,  the  persons  claiming  under  this  being  pur- 
chasers for  a  consideration  entirely  new,  the  limitations  being  en- 
tirely different;  and,  therefore,  it  would  be  absurd  to  call  this  a  sat- 
isfaction for  another  thing  it  hath  nothing  to  do  with,  and  to  which 
it  is  no  way  relative. 

The  next  thing  to  be  considered  is,  the  fine  levied  of  the  lands  in 
question  in  the  year  1728,  by  the  grandfather;  the  intent  Avhereof 
was  to  have  the  absolute  ownership  of  those  lands  in  him.  And 
one  reason  why  no  application  hath  been  made  till  now  to  have 
those  articles  carried  into  execution,  might  be  that  during  the 
grantlfather's  life  nobody  was  entitled  to  anything  in  possession 
under  them. 

Then  comes  the  will  in  1725,  whereby  he  gives  part  of  those 
lands,  settled  in  1698,  to  his  daughters;  thereby  showing  his  appre- 
{d)  2  P.  Wms.  349;  1  Bro.  P.  C.  225;  Toml.  edit. 

460 


STRKATFIELD  V.   STREATFIELD.  *  404 

hension  to  be,  that,  by  a  fino,  ho  bad  given  himself  a  power  of  dis 
posing  of  them;  and  it  would  be  a  very  Htrainod  construction  to  say 
that  he  intended  this,  not  as  a  present  devise  to  his  daughters,  but 
to  take  effect  out  of  the  reversion  of  the  lands  comprised  in  the 
articles. 

The  next  thing  is  the  devise  to  the  trustees  for  his  grandson  the 
plaintiff,  upon  his  attaining  the  age  of  twenty -one;  and 
the  question  here  is  whether  the  general  *  words  shall  ever  [  *  404] 
pass  lands  not  capable  of  the  limitation  in  the  will  ?  And  to 
that  have  been  cited  Rose  and  BartletVs  cane,  Cro.  Car.  292,  and  other 
cases;  but  they  cannot  influence  the  present  case:  for,  the  testator 
had  legally  a  power  to  dispose  of  those  lands;  and  though  they 
might  be  affected  with  a  trust  in  equity,  yet  that  cannot  be  sup- 
posed to  lie  in  his  conusance,  he  having  done  an  act  to  enable 
himself  to  dispose  of  these  lands.  And  it  differs  from  the  case  that 
was  put  of  an  express  trust,  and  the  trustee  devises  all  his  lands; 
for  there  the  trustee  cannot  be  ignorant  that  the  lands  which  he 
holds  in  trust  are  not  his  own.  But  what  makes  his  intent  clear  is, 
that  he  hath  devised  part  of  these  lands  to  his  daughters,  and  he 
must  have  looked  upon  himself  as  master  of  the  one  part  as  well  as 
the  other:  I,  therefore,  thmk  his  intent  icas  clear  to  jyass  these  lands 
hy  the  icill;  and  if  so,  we  must  now  consider  what  will  bo  the  ef- 
fect of  this  will. 

If  the  plaintiff  has  a  lien  upon  the  lands  of  the  articles,  then  he 
may  stand  to  them  if  he  pleases;  hut  ivhen  a  man  takes  upon  him 
to  devise  tvhat  he  had  no  poicer  over,  upon  a  supposition  that  his 
will  will  he  aequiesced  tinder,  this  Court  compels  the  devisee,  if  he 
will  take  advantage  of  the  will,  to  take  entirely  but  not  partially 
under  it;  as  was  done  in  Noys  and  Mordaunt's  case  (2  Vern.  581); 
there  heing  a  tacit  condition  annexed  to  all  deviscs'of  this  nature, 
that  the  devisee  do  not  dislurb  the  disposition  which  the  devisor  hath 
made.  So  are  tho  several  cases  that  have  been  decreed  upon  the 
custom  of  London. 

The  only  difficulty  in  the  present  case  is,  that  what  is  given  to 
the  plaintiff  is  precarious,  nothing  being  given  to  him  if  ho  dies  be- 
fore twenty-oue,  and,  if  after,  theu  but  an  estate  for  life;  and  that 
he  appears  before  the  Court  in  a  favourable  light  of  being  heir-at- 
law;  but  this  will  not  alter  the  case.  The  estates  which  the  testa- 
tor has  given  him  were  undoubtedly  in  his  power;  he  hath  given 
them  to  trustees  until  his  grandson  attain  twenty-one,  and  has  dis- 

461 


*  406  STREATFIELD  V.   STREATFIELD. 

posed  of  them  in  such  a  manner  as  that  there  can  never 
f  *405  ]  be  any  undisposed  residue  to  go  to  *tbe  plaintiff  as  heir- 
at-law;  and  surely  it  is  as  much  in  the  power  of  the  Court 
to  make  this  bequest,  thus  limited  to  be  a  satisfaction,  if  the  party 
will  stand  to  the  will,  as  in  the  other  cases.  Indeed,  if  he  takes 
by  the  will  there  is  nothing  to  make  satisfaction  to  his  sisters 
for  their  general  chance  under  the  articles;  but  that  is  because 
nothing  is  left  them  by  the  will;  and  they  cannot  be  said  to  be 
quite  destitute  of  provision,  since  it  is  just  and  reasonable  that 
they  should  be  maintained  by  their  mother,  who  is  entitled  to  a 
large  and  ample  provision  by  her  marriage  settlement;  nor  can 
what  is  devised  to  the  plaintifP  be  looked  upon  as  intended  by  the 
testator  to  go  towards  the  maintenance  of  younger  children;  for,  if 
the  plaintiff  dies  before  twenty-one,  then  all  the  profits  already  re- 
ceived are  to  go  to  his  aunts;  and  so  by  that  construction  I  must 
take  the  maintenance  out  of  their  estate,  and  oblige  them  to  con- 
tribute to  the  maintenance  of  distant  relations,  viz.,  nieces,  at  the 
same  time  that  the  mother  (who  hath  an  ample  provision)  would  be 
left  at  large,  and  iinder  no  tie  of  maintaining  her  own  children. 

And  so  decreed  (e)  the  plaintiff  to  have  six  months  after  he  comes 
of  age,  to  make  his  election,  whether  he  will  stand  to  the  will  or 
the  articles?  And  if  he  makes  his  election  to  stand  to  the  latter, 
then  so  much  of  the  other  lands  devised  to  him  as  will  amount  to 
the  value  of  the  lands  comprised  in  the  articles,  and  which  were 
devised  to  Margaret  and  Martha,  to  be  conveyed  to  them  in  fee. 


Noys  V.  Mordaunt,  and  Streatfield  v.  Streatfield,  are  printed 
together  since  they  are  usually  cited  as  having  conclusively  estab- 
lished the  doctrine  of  election,  which  is  founded  upon  the  princi- 
ple, that  there  is  an  implied  condition,  that  he  who  accepts  a  bene- 
fit under  an  instrument  must  adopt  the  whole  of  it,  conforming  with 
all  its  provisions,  and  renouncing  every  right  inconsistent  with 
them.  See  Walpole  v.  Conicay,  Barnard.  Ch.  Rep.  159;  Kirkhani 
V.  Smith,  1  Ves.  258;  Macnamara  v.  Jones,  1  Bro.  C.  C.  411;  Frank 
V.  Standish,  1  Bro.  C.  C.  588,  n.;  Blake  v.  Bunbunj,  4  Bro.  C.  C.  21 ; 
Swan  V.  Holmes,   19   Beav.   471;     Wintonr  v.    Clifton,    21    Beav. 

447;  8  De  G.  McN.  &  G.  641;  Cosby  v.  Lord  Ashtoicn, 
[  *406]   *  10  Ir.  Ch.  Rep.  219;  Heazle  v.  Fitzmaurice,  13   Ir.  Ch. 

Rep.  481;  Schroder  v.  Schroder,  Kay,  584.  585;  2  Seton 
on  Decrees,  933,  4th  ed. ;  Dillon  v.  Parker,  1  Swanst.  359,  and  Gret- 

(e)  See  the  decree,  1  Swanst.  447;  Keg.  Lib.  B.  1735,  fol.  205. 

462 


STUEATFIELU  V.   STREATFIKLD.  *  400 

ton  V.  Haivard,  1  Swanst.  4U0,  and  Mr.  Swanston's  loarnoJ  and 
elaborate  notes  to  those  cases.  [The  doctrine  rests  upon  the  prin- 
cipal that  a  person  who  claims  under  an  instrument  shall  not  inter- 
fere by  a  paramount  title  to  prevent  another  part  of  the  same  in- 
strument from  having  effect  accordintrto  its  construction.  A  person 
cannot  accept  and  reject  the  same  instrument:  Heaves  r.  Garrett, 
34  Ala.  558;  Wilbank  v.  A\  ilbanks,  18  111.  17;  Marriott  r.  Badger,  5 
Md.  800;  Clay  v.  Hart,  7  Dana,  1;  Gable  r.  Daub,  4  AVright  (Pa.  j, 
217;  Pemberton  v.  Pemberton,  29  Mo.  409;  O'Reilby  v.  Nicholson, 
45  Mo.  100;  Van  Duyne  v.  Van  Duyne,  1  McCart.  49;  Brown  r.  Pit- 
ney, 39  in.  408;  Brown  v.  Eicketts,  3  Johns.  Ch.  553.] 

To  illustrate  the  doctrine  of  election,  suppose  A.,  by  will  or  deed 
gives  to  B.  property  belonging  to  C,  and  by  the  same  instrument 
gives  other  property  belonging  to  himself  to  C,  a  Court  of  equity 
will  hold  C.  to  be  entitled  to  the  gift  made  to  him  by  A.  only,  iipon 
the  implied  condition  of  his  conforming  witli  all  the  provisions  of 
the  instrument,  by  renouncing  the  right  to  his  own  j)roperty  in  fa- 
vour of  B. ;  he  must,  consequently,  make  his  choice,  or,  as  it  is 
technically  termed,  he  iS  put  to  his  election,  to  take  either  under  or 
against  the  instrument;  if  C.  elects  to  take  under,  and  consequently 
to  conform  with  all  the  provisions  of,  the  instrument,  no  difficulty 
arises,  as  B.  will  take  C's  property,  and  C.  will  take  the  property 
given  to  him  by  A.;  but  if  C.  elects  to  take  against  the  instrument, 
that  is  to  say,  retains  his  own  property  and  at  the  same  lime  sets 
up  a  claim  to  the  property  given  to  him  by  A.,  an  important  ques- 
tion arises  whether  he  thereupon  incurs  a  forfeiture  of  the  whole 
of  the  benefit  conferred  upon  him  by  the  instrument,  or  is  merely 
bound  to  make  compensation  out  of  it  to  the  person  who  is  dis- 
appointed by  his  election.  There  are  many  dicta  and  some  old 
text  writers  are  in  favour  of  the  doctrine  of  forfeiture,  note  to  1 
Roper  on  Husband  and  "Wife,  500,  by  Jacob,  2  Sugd.  Pow.  145, 
7th  edit. 

The  principal  case  of  Streatfield  v.  Streatfield,  is  a  distinct  au- 
thority for  the  doctrine  of  compensation,  which  may  now  be  con- 
sidered as  fully  established:  Webster  v.  Mil  ford,  2  Eq.  Ca.  Ab.  303, 
marg. ;  Bar  v.  JSor,  3  Bro.  P.  C.  Toml.  Ed.  107;  Ardesoife  v.  Be7i- 
nef,  2  Dick.  405;  Lewis  v.  King,  2  Bro.  C.  C.  GOO;  Freke  v.  Barring- 
ton,  3  Bro.  C.  C.  284;  Whistler  v.  Webster,  2  Ves.  jun.  372;  Ward 
v.  Baugh,  4  Ves.  627;  Lady  Cavan  v.  Pultenexj,  2  Ves.  jun.  500; 
Blake  v.  Banbury,  1  Ves.  jun.  523;  Welby  v.  Welby,  2  V.  "&  B.  190, 
191;  and  Lord  Eldon,  in  Daskivood  v.  Peyton,  18  Ves.  49;  Tibbie's 
V.  Tibbifts,  Jac.  310;  Lord  Rancliffe  v.  Parkyns,  0  Dow.  179;  and 
Ker  V.  Wauchope,  1  Bligh.  25,  and  it  may  now  be  laid  down  in  ac- 
cordance with  Mr.  Swanston's  learned  note  to  Gretton  v.  Haicard, 
1  Swanst.  433,  "1st.  That,  in  the  event  of  election  to  take  against 
the  instrument,  Courts  of  equity  assume  jurisdiction  to  sequester 
the  benefit  intended  for  the  refactory  donee,  in  order  to  secure 
compensation  to  those  whom  liis  election  disappoints.     2nd.   That 

463 


*408      .        STREATFIELD  t".  STREATFIELD. 

[  *  407  ]  the  surplus  *  after  compensation  does  not  devolve  as 
undisposed  of,  but  is  restored  to  the  donee,  the  purpose 
being  satisfied  for  which  alone  the  Court  controlled  his  legal  right." 
See  also  Padburij  v.  Clark,  2  Mac.  &  G.  298;  Greemcood  v.  Penny, 
12  Beav.  403;  Hotcells\.  Jenkins,  1  De  G.  Jo.  &  Sm.  617;  Grissell 
V.  Sivinhoe,  7  L.  E.  Eq.  291;  Pickersgill  v.  Rodger,  5  Ch.  D.  163; 
Schroder  v.  Schroder,  Kay,  578;  Hoivells  v.  Jenkins,  1  De  G.  J.  & 
S.  617;  Cooper  v.  Cooper,  6  L.  E.  Ch.  App.  15;  S.  C,  7  L.  E.  Ho. 
Lo.  53. 

As  to  a  form  of  decree  securing  compensation  to  parties  disap- 
pointed by  an  election  to  take  against  a  will,  see  2  Seton  on  Decrees, 
934,  4th  ed. 

And  after  the  death  of  a  person  who  has  elected  to  take  against 
an  instrument  compensation  will  be  directed  to  be  made  out  of  his 
estate  to  the  party  who  has  sustained  a  loss  thereby,  so  far  as  such 
loss  does  not  exceed  the  be^nefit  taken  under  the  instrument  by  the 
person  making  such  election:  {Rogers  v.  Jones,  3  Ch.  D.  688,  690; 
and  for  Forms  of  Decree  therein,  see  2  Seton  on  Decrees,  935),  and 
such  party  may  now  commence  an  action  for  damages  or  compensa- 
tion (Rogers  v.  Jones,  7  Ch.  D.  345).  And  inasmuch  as  it  is  not 
within  the  causes  and  matters  assigned  to  the  Chancery  Division, 
by  sec.  34  of  the  Judicature  Act,  1873,  although  it  may  be  enter- 
tained there,  the  lower  scale  of  costs  only  has  been  held  applicable. 
lb. 

Moreover,  where  a  person  who  elects  to  take  a  fund  against  an 
instrument,  has  been  previously  receiving  money  under  it,  he  must 
on  making  his  election  repay  such  money,  and  the  persons  interested 
under  the  trusts  of  the  instrument  have  a  lien  for  the  repayment 
thereof  on  the  fund  which  he  elects  to  take:  Codrington  v.  Lindsay, 
8  L.  E.  Ch.  App.  578. 

As  the  doctrine  of  election  depends  upon  compensation,  it  follows 
that  it  will  not  be  applicable  when  made  contrary  to  the  instrument 
unless  there  be  a  free  and  disposable  fund  passing  thereby  from 
which  compensation  can  be  made.  Thus  it  was  held,  by  Lord 
Loughborough,  C,  inBristowe  v.  Warde,  2  Ves.  jun.  336,  that  where, 
under  a  po^^er  to  appoint  to  children,  the  father  made  an  appoint- 
ment to  persons  not  objects  of  the  power,  any  child  might  set  it 
aside  and  claim  as  in  default  of  appointment,  and  also  take  a  specfic 
share  appointed  to  him.  "  The  doctrine  of  election,''  said  his  Lord- 
ship, "never  can  be  applied,  but  where,  if  an  election  is  made  contrary 
to  the  will,  the  interest  that  would  pass  by  the  will  can  be  laid  hold 
of,  to  compensate  for  what  is  taken  away;  therefore  in  all  cases 
there  must  be  some-  fi'eG  disposable  property  given  to  the  person, 
which  can  be  made  a  compensation  for  what  the  testator 
[  *  408  ]  takes  away.  *  That  cannot  apply  to  this  case,  where  no 
part  of  his  property  is  comprised  in  the  will  but  that  which 
be  had  power  to  distribute."  See  also  Box  v.  Barrett,  3  L.  E.  Eq. 
^'iA:',  Re  Fowler's  Trusts,  27  Beav.  842. 
464 


STREATFIELD  IJ.  STREATFIKLD.  *  409 

Upon  the  samo  principle  in  the  case  of  a  married  woman,  to 
■whom  an  interest  with  a  restraint  on  anticipation  is  given  by  the 
samo  instrument  as  that  which  gives  rise  to  a  question  of  election, 
the  doctrine  of  election  does  not  api)ly,  as  the  nature  of  her  interest 
in  the  property,  to  bo  reliu(juished  by  way  of  compensation,  has  by 
the  terms  of  the  instrument  been  made  inalienable.  In  re  Wheatley, 
Smith  V.  Sj?ence,  27  Ch.  D.  GOO;  Smith  v.  Lucan,  18  Ch.  D.  531;  sed 
vide,  In  re  Vardon's  'rrusts,  W.  N.  Nov.  20,  1884,  p.  210;  S.  C.  28 
Ch.  D.  124,  reversed  on  appeal,  W.  N.  1885,  Dec.  20,  p.  224. 

A  person  will  not  be  obliged  to  elect  between  benefits  conferred 
upon  him  In'  an  instrument,  and  an  interest  which  he  takes  deri- 
vatively from  another,  who  has  elected  to  take  in  opposition  to  the 
instrument.  Thus  it  was  held,  that  a  husband  might  bo  tenant  hy 
the  curtesy  of  an  estate  tail,  which  his  wife  had  elected  to  take  in 
opposition  to  a  will,  under  which  he  had  accepted  benefits:  for  as 
the  wife  made  complete  compensation  to  the  persons  disappointed 
by  her  election,  there  could  not  be  a  second  election,  becaiise  in  fact 
there  was  no  one  entitled  to  compensation:  Lady  Cavan  v.  Pnlte 
ney,  2  Ves.  jun.  544;  3  Ves.  384. 

Nor  will  a  person  bo  compelled  to  elect  between  a  benefit  con- 
ferred upon  him  by  an  instrument,  and  an  interest  which  ho  took 
adversely  to  the  instrument  and  derivatively  from  the  real  owner, 
who  took  no  benefit  thereunder.  Thus,  if  one  co-heiress  by  electing 
to  take  under  a  will  is  compelled  to  give  up  her  original  share,  she 
may  retain  a  share  which  since  the  testator's  death  has  descended 
to  her  from  a  deceased  co-heiress :  Coojjer  v.  Cooper,  0  L.  E. 
Ch.  App.  15,  21;  7  L.  R.  Ho.  Lo.  53;  Iloicells  \.  Jenkins,  2  J.  &  H. 
700;  Grissell  v.  Sicinhoe,  7  L.  R.  Eq.  291. 

If  however  the  title  to  property,  whether  derivative  or  otherwise, 
were  vested  in  the  owner  before  the  testator's  death,  the  owner  must 
elect  between  benefits  conferred  upon  him  by  the  testator's  will  and 
his  own  property  if  the  testator  has  devised  it  to  others,  see  Coojyer 
V.  Cooper,  0  L.  R.  Ch.  App.  21;  7  Ho.  Lo.  53;  Brodie  v.  Barry,  2 
V.  &  B.  127;  Bennett  v.  Houldsworth,  6  Ch.  D.  071. 

It  seems  to  be  doubtful,  whether  the  doctrine  of  election  applies 
to  grants  from  the  Crown,  for  the  Crown  is  always  in  existence  and 
can  always  bo  applied  to,  to  set  right  the  grant;  per  Sir  T.  Plumer, 
M.  R.,  2  J.  &  W.  345. 

^Vhere,  however,  two,  persons  A.  and  B.  joined  in  a 
I)etition  to  tho  crown,  representing  an  estate  *  to  have  es-  [  *  409  ] 
cheated  and  procured  a  grant  of  it  to  be  made  to  them,  it 
was  held  by  Sir  T.  Plumer,  M.  R.,  that  the  assignees  of  A.  coiild 
not  afterwards  set\ip  a  claim  to  one  part  under  a  ]irior  title  in  him- 
self, while  taking  tho  benefit  of  tho  grant  as  to  tho  rest:  Cmnming 
V.  Forrester,  2  J.  &  W.  331. 

The  doctrine  of  election  is  applicable  to  deeds  as  well  as  to  wills 
(Llewellyn  v.  Mackworth,  Barnard.  Ch.  Rep.  445;  Biqland  v.  Hud- 
dleston,  3  Bro.  C.  C.  280,  n.;  Mowex.  Butler,  2  S.  &  L.  200;  Firm- 

30   WHITE  ON   EQUITY.  465 


*  410  STREATFIELD  V.   STREATFIELD. 

ingham  v.  Klnvan,  2  S.  &  L.  450;  Gh^een  v.  Green,  2  Mer.  8G;  Bacon 
V.  Cosby,  4  De  G.  &  Sm.  2(31;  Cummingy.  Forrester,  2  J.  &  W.  345  ; 
Anderson  v.  Abbot,  28  Beav.  457 ;  Mosley  v.  Ward,  29  Beav.  407  ; 
Codrington  v.  Lindsay,  8  L.  R.  Ch.  App,  578;  S.  C,  nom.  Codring- 
ton  V.  Codrington,  7  L.  K.  Ho.  Lo.  854):  although  by  the  civil  law 
from  which  it  appears  to  have  been  borrowed  by  our  courts  of  equity, 
it  was  confined  to  wills.  See  Mr.  Swanstou's  note  to  Dillon  v. 
Parker,  1  Swanst.  394. 

The  doctrine  of  election,  moreover,  notwithstanding  the  opinion 
of  Lord  Hardu'icke,  in  Bar  v.  Bor,  3  Bro.  P.  C.  178,  n.,  Toml.  Ed., 
and  the  decision  in  Steicart  v.  Henry,  Vern.  &  Scriv.  49,  has  been 
held  applicable  to  interests  remote,  contingent,  or  of  small  value, 
such  as  a  remainder  expectant  on  an  estate  tail  as  well  as  to  those 
which  are  immediate  or  of  great  value:  [Webb  v.  Earl  of  Shaftes- 
bury, 1  Ves.  480;  Graves  v.  Forman,  cited  3  Ves.  67;  Highicay  v. 
Banner,  1  Bro.  C.  C.  584;  Wilson  v.  Townsejid,  2  Ves.  jun.  697  ; 
Morgan  v.  Morgan,  4  Ir.  Ch.  Rep.  606;  Sadlier  v.  Butler,  1  I.  R. 
Eq.  415;  Henry  v.  Henry,  6  I.  R.  Eq-  286),  also  to  the  interest  of  next 
of  kin  in  the  unascertained  residue  of  an  intestate's  personal  estate. 
Cooper  v.  Cooper,  6  L.  R.  Ch.  App.  15;  S.  C.,1  L.  R.  Ho.  Lo.  53  ; 
Bennett  v.  Houldsicorth,  6  Ch.  D.  671. 

In  order  to  raise  a  case  of  election,  at  any  rate  in  the  case  of  a 
will,  there  must  appear  in  the  will  itself  a  clear  intention  on  the  part 
of  the  testator  to  dispose  of  that  which  is  not  his  own  {Forrester  v. 
Cotton,  1  Eden,  531;  Judd  v.  Pratt,  13  Ves.  168;  15  Ves.  390; 
Dashivoodv.  Peyton,  18  Ves.  27;  Blake  v.  Bunbury,  4  Bro.  C.  C.  21; 
S.  C,  1  Ve3.  jun.  514;  Ranclijfe\.  Lady  Parky ns,  6  Dow,  149,  179; 
Dillon  V.  Parker,  1  Swanst.  359;  S.  C,  Wills.  253;  Jac.  505  ;  7 
Bligh,  N.  S.  325;  1  C.  &  F.  303;  Sugd.  Prop.  450;  Jervoisey.  Jer- 
voise,  17  Beav.  566;  Padbury  v.  Clark,  2  Mac.  &  G.  298  ;  Lee  v. 
Egremont,  5  De  G.  &  Sm.  348  ;  Wintour  v,  Clifton,  21  Beav.  447  ; 
8  De  G.  Mac.  &  G.  641 ;  and  Stephens  v.  Stephens,  3  Drew.  697  ;  1 
De  G.  &  Jo.  62;  PooZe  v.  Olding,  10  W.  R.  (V.-C.  K)  337  (L.  J.) 
591;  Fox  v.  Charlton,  10  W.  R.  (V.-C.  K)  506;  Thornton 
[  *  410  ]  V.  Thornton,  *  11  Ir.  Ch.  Rep.  474;  Box  v.  Barrett,  3  L. 
R.  Eq.  244;  Sadlier  v.  Butler,  1  Ir.  Eq.  415),  In  re  Booker, 
W.  N.  1886,  Feby.  6,  P.  18,  [The  Court  will  refuse  to  raise  an  elec- 
tion from  mere  precatory  words  which  may  be  construed  as  not  be- 
ing imperative:  see  Elfresh  v.  Schley,  2  Gill.  182;  Stokes  Estate,  11 
P.  F.  Smith,  144;  Havens  v.  Sackett,  15  N.  Y.  365.]  and  it  is  im- 
material whether  he  knew  the  property  not  to  be  his  own,  or  by  mis- 
take conceived,  it  to  be  his  own;  for,  in  either  case,  if  the  intention 
to  dispose  of  it  appears  clearly,  his  disposition  will  be  sufiicient  to 
raise  a  case  of  election:  Whistler  v.  Webster,  2  Ves.  Jan.  370  ; 
Thellussony.  Woodford,  13  Ves.  221;  Wellnj  v.  Welby.  2  V.  &  B. 
199;  overruling  Cull  \.  Showcll,  Amb.  727;  Whitley  v.  Whitley,  31 
Beav.  173;  Coidts  v.  Ackworth,  9  L.  R.  Eq.  519;  Griffith  Boscau-en 
V.  Scott,  26  Ch.  D.  358.  [Cases  of  no  little  difficulty  sometime  arise 
466 


STREATFIELD  V.  STREATFIELD.  *411 

whore  a  testator  assumes  to  deal  with  property  in  which  ho  has  but 
a  limited  interest.  If  the  person  who  afit'Cts  to  dispose  of  the  pro- 
perty has  any  interest  at  all,"  the  Courts  lean  in  favour  of  a  construc- 
tion which  would  make  him  deal  only  with  that  to  which  he  is  en- 
titled, and  not  with  that  over  which  ho  has  no  disposinj^  power.] 

And  it  is  likewise  immaterial  that  a  party  put  to  his  election  by 
a  will,  after  the  date  thereof  puts  into  settlement  property  belong- 
ing to  himself,  which  the  testator  affects  to  dispose  of  by  his  will. 
See  Middleton  v.  Windross,  1(3  L.  E.  Eq.  212,  there  a  testator  gave 
all  his  propei'ty  equally  among  his  three  daughters,  Sarah,  Margaret, 
and  Jane,  and  directed  Jane,  within  twelve  months  after  attaining 
twenty  one,  to  bring  into  hotch-pot  an  estate  to  which  she  was  en- 
titled under  the  will  of  her  grandfather.  On  Jane's  marriage,  sub- 
sequently to  the  date  of  the  will,  she,  at  the  instance  and  under  the 
superintendence  of  her  father,  settled  the  estate  upon  herself  and 
her  husband  successively  for  life,  with  remainder  to  the  children  of 
the  marriage.  Afterwards,  by  the  testator's  advice,  the  estate  was 
sold  by  the  trustees  for  8000/.  In  a  suit  to  administer  the  testator's 
estate,  it  was  held  by  Wickens,  V. C,  that  the  3000/.,  less  the  costs 
of  the  sale,  ought  to  be  brought  into  account  in  respect  of  Jane's 
share. 

MoroDver  though  part  of  the  benefits  proposed  by  a  testator  to  be 
conferred  upon  another  may  fail,  what  remains  will  bo  sufficient  to 
constitute  a  case  for  election:  Newman  v.  Neirman,  1  Bro.  C.  C. 
186.  [Commonly,  election  is  voluntary,  but  equity  has  a  jurisdic- 
tion to  compel  it  ia  some  cases,  as  under  wills,  2  Story's  Eq.  sec. 
1076.] 

The  mere  recital  in  a  will  that  a  party  is  entitled  to  certain  pro- 
perty, but  not  declaring  the  intention  of  the  testator  to  give  it  to 
him,  will  not  be  sufficient  to  raise  a  case  of  election:  Dashwood  v. 
Peyton,  IS  Ves.  41;  Forrester  y.  Gotten,  Amb.  388;  S.  C,  1  Eden. 
522,  535;  Blake  y.  Bunbury,  1  Ves.  jun.  514,  523.  So  in  Box  \. 
Barrett,  3  L.  11.  Eq.  244,  under  a  settlement  the  four  daughters  of 
a  testator  took  equal  shares  subject  to  his  life  interest.  The  testa- 
tor, by  his  will,  recited  that  under  the  settlement  his  tii'o  daughters, 
Ellen  and  Emily,  u'oidd  become  entitled  to  certain  hereditaments,  and 
that  in  making  his  will  he  had  taken  that  ifito  consideration,  and 
had  not  devised  them  so  large  a  share  under  his  will,  as  he  would 
have  done  had  they  not  been  so  entitled.  He  then  devised 
to  his  daughters,  Ellen  and  Emily,  certain  estates,  *  and  [*411  ] 
to  his  other  daughters,  Edith  and  Eliza,  certain  other 
estates  of  much  larger  vahie.  The  irill  did  not  purjwrt  todif^pose 
of  or  effect  the  settled  estates.  It  was  held  by  Loril  Bom  illy,  M.  R., 
that  as  the  will  did  not  purport  to  make  any  disposition  of  the  settled 
estates,  and  was  only  made  under  a  mistaken  impression,  Edith  and 
Eliza  were  not  put  to  their  election.  See  also  Lavgslow  v.  Langs- 
loiv  (21  Beav.  552;  Clackely.  Lamb,  14  Beav.  482;  Banks  y.  Banks, 
17  Beav.  352;  In  re  Folder's  Trust,  27  Beav.  362). 

467 


*  412  STREATFIELD  V.   STREATFIELD. 

The  difficulty  of  sustaining  a  case  of  election  is  always  much 
greater  where  the  testator  has  a  partial  interest  in  the  property 
dealt  with,  than  where  he  purports  to  devise  an  estate  in  which  he 
has  no  interest  at  all  {Lord  RancUffe  v.  Lady  Parkins,  6  Dow.  185; 
Henry  v.  Henry,  6  I.  R.  Eq.  286).  For  if  the  testator  has  some 
interest,  the  Court  will  lean  as  far  as  possible  to  a  construction 
which  would  make  him  deal  only  with  that  to  which  he  is  entitled: 
Maddison  v.  Chapman,  1  J.  &  H.  470;  Re  BidirelVs  Settlement,  11 
W.  R.  (V.-C.  K.)  16 1);  and  if  a  testator  entitled  to  a  share  of  a 
house  or  lands  devised  his  interest  or  property  therein  it  is  clear 
that  he  only  intended  his  own  interest  therein  to  pass:  Henry  v. 
Henry,  6  I.  R.  Eq.  286. 

Where  however  a  testator  entitled  only  to  part  of  an  estate  uses 
words  in  devising  it  which  show  clearly  that  he  intended  to  pass 
the  entirety,  if  the  owner  of  the  other  part  takes  other  benefits  by 
the  will,  he  will  be  put  to  his  election  :  as  for  instance  where  a  per- 
son entitled  only  to  a  moiety  of  a  house  devises  it  as  "all  my  mes- 
suage, now  on  lease  to  A.  and  in  his  occupation  "  {Padbury  v.  Clark, 
2  Mac.  &  G.  298)  especially  if  there  are  also  directions  to  repair  t  ho 
property  specifically  devised  (lb.),  or  if  the  testator  in  another  part 
of  the  will  correctly  described  a  moiety  when  it  was  his  intention 
to  give  a  moiety,  lb. 

And  where  the  wife  of  a  devisee  alone  was  entitled  to  a  particular 
property,  a  devise  of  it  as  "  my  interest  in  the  A.  property,"  will  put 
the  wife  to  her  election:  Whitley  v.  Whitley^  31  Beav.  173;  but  see 
Read  v.  Crop,  1  Bro.  C.  C.  492;  Wintour  v.  Clifton,  21  Beav.  447; 
8  De  G.  Mac.  &  G.  644;  Ch^osvefior  \.  Durston,  25  Beav.  97;  Usticke 
v.  Peters,  4  K.  &  J.  437.  And  a  specific  devise  by  a  particular  de- 
scription may  be  considered  a  sulficient  indication  of  an  intention 
of  a  partial  owner  of  property  to  pass  the  entirety  thereof  (Fitz- 
simons  v.  Fitzsimons,  28  Beav.  417;  Hoivells  v.  Jenkins,  2  J.  &  H. 
706;  1  De  G.  Jo.  &  Sm.  617;  Miller  v.  Thurgood,  33  Beav.  496; 
Wilkinson  v.  Dent,  6  L.  R.  Ch.  App.  339;    but  see  Chave  v.  Chave, 

2  J.  &  H.  713,  n. 
[  *  412  ]  Upon  the  same  principle  where  *  a  sum  of  10,000Z. 
Consols  being  in  settlement  in  trust  for  two  sisters  for  life, 
and  after  their  deaths  two-thirds  of  the  capital  were  in  trust  for 
their  brother,  and  one-third  in  trust  for  their  two  sisters;  and  the 
brother  bequeathed  "the  whole  of  his  property"  to  trustees  as  to 
part  on  certain  trusts  for  his  sisters,  and  he  afterwards  bequeathed 
the  property  "including  the  10,000Z.  trust  money,"  toother  persons; 
it  was  held  that  the  sisters  must  elect  between  the  benefits  given 
them  by  the  will,  and  their  interest  in  the  10,000Z.  Consols.  Sican 
V.  Holmes,  19  Beav.  471. 

Where  a  testator  is  entitled  only  to  a  reversion  in  lands  devised, 

the  question  sometimes  arises  whether  he  intended  to  include  in  the 

devise  the  immediate  and  absolute  interest,  or  to  confine  it  to  his 

own  estate  only.     Prima  facie  doubtless  the  testator  would  beun- 

468 


STREATFIELD  V.   STRKATFIELD.  'MIS 

derstood  to  refer  only  to  what  be  had  j)Ower  to  disj)ose  of.  He 
may,  however,  show  a  contrary  intention,  if  for  instance  he  has  de- 
vised the  laud  in  question  upon  limitations,  which  cannot  or  prob- 
ably would  not  ever  take  effect,  or  has  ccniferred  powers  on  the  de- 
visees which  they  cannot  or  prolnibly  will  not  ever  be  able  to  exer- 
cise, the  intention  to  include  the  immediate  interest  will  be  suf- 
ficiently indicated  to  raise  a  case  of  election:  Welbij  v.  Welbjj,  2  V. 
&  B.  187,  lUS;  Wintour  v.  Clifton,  21  Beav.  447;  8  De  G.  Mac.  & 
G.  041.  So  too  a  direction  that  an  annuity  is  to  be  paid  to  a  per- 
son for  lif(>,  out  of  lands  of  which  the  testator  has  only  the  reversion, 
sufficiently  indicates  an  intention  to  dispose  of  the  whole,  Usticke  v. 
Peter.%  4  K.  &  J.  437,  455. 

But  such  indications  of  intention  will  not  prevail  against  an  ex- 
press confirmation  of  the  settlement  creating  the  estates,  which 
come  before  the  testator's  reversion;  liancUffe  v.  Lady  Parlqjns,  G 
Dow,  149.  But  a  confirmation  of  a  part  of  the  settlement  leaves 
the  remainder  unconfirmed:     Blake  v.  Bunbury,  1  Ve.s.  Jun   514. 

A  devise  of  an  estate  does  not  per  se  import  an  intention  to  devise 
it  free  from  incumbrances  to  the  devisee,  so  as  to  put  the  incum- 
brancers taking  benefits  under  the  will  to  their  election  (Stephens , 
v.  Stephens,  1  Do  G.  k  Jo.  62:    3  Drew.  097;  Henry  v.  Henry,  0  I. 
liep.  Eq.  280;  Maddison  v.  Chapman,  1  J.  &  H.  47()j. 

The  intention  to  do  so  must  appear  conclusively  from  the  words 
of  the  will,  as  for  instance,  if  the  testator  repudiates  the  instrument 
creatino-  the  charge,  and  the  dispositions  of  the  will  are  inconsistent 
with  that  instrument,  it  will  show  that  he  intended  the  property  to 
pass  free  from  the  charge:  Sadlier  v.  Butler,  1  Ir.  11.  Eq.  413,423. 
So  if  a  testator  entitled  to  an  estate,  subject  to  an  incumbrance, 
secured  by  a  long  term,  devise  such  estate  for  a  term 
*  to  take  effect  immediately  upon  the  death  of  the  testator,  [  *  413  ] 
and  for  the  immediate  purpose  of  raising  money  for  the 
payment  of  annuities  and  legacies,  the  incumbrancers  deriving  other 
interests  under  the  will,  if  they  take  by  it,  must  not  disappoint  it, 
but  must  permit  the  estate  to  go  in  the  new  channel  free  from  in- 
cumbrances as  the  testator  intended:  Blake  v.  Bunbury,  1  Ves. 
jun.  514,  523. 

A  mere  general  devise  will  not  comprehend  property  of  which 
tlio  devisor  is  not  owner,  although  even  before  the  "Wills  Act,  at 
the  date  of  his  will  and  his  death  he  had  no  property  of  his  own 
to  which  the  words  were  applicable:  Read  v.  Crop,  1  Bro.  C.  C. 
402;  Jervoise  v.  Jervoise,  17  Beav.  50();  Tliornton  v.  Thornton,  11 
Ir.  Ch.  474.  Nor  will  the  fact  that  the  devise  is  to  uses  in  strict 
settlement  extend  general  words  to  more  than  the  testator's  interest 
thouo-h  his  devisable  interest  is  only  an  estate  ])our  aidre  vie:  Cosby 
V.  llrd  Ashtonm,  10  Ir.  Ch.  Rep.  219,  226,  231. 

Although  at  one  time  a  different  opinion  prevailed,  it  is  now 
clearly  settled  that  parol  evidence,  dehors  the  will,  is  not  admissi- 
l)le  for  the  purpose  of  showing  that  a  testator  considering  property 

469 


*  414  strp:atfield  v.  streatfield. 

to  be  his  own,  which  did  not  actually  belong  to  him,  intended  to 
comprise  it  in  a  general  devise  or  bequest:  Blake  v.  Bunbury,  1 
Ves.  jun.  523;  Stratton  v.  Best,  1  Yes.  jun.  2&5:  Butter  y.  Maclean, 
4  Ves.  537;  Pole  v.  Somers,  6  Ves.  322;  Druce  v.  Denison,  6  Ves. 
402;  Doe  v.  Chichester,  4  Dow.  76,  89,  90;  Clementson  v.  Gandy,  1 
Kee,  309;  Dixon  v.  Sampson,  2  Y.  &  C.  C.  C.  566;  overruling  Pul- 
teneyx.  Lord  Darlington,  2  Ves.  jun.  544;  3  Ves.  384;  521,529;  6 
Ves.  314,  322,  391,  399,  402.  [Evidence  dehors  the  instrument  is 
not  admissible:  McGinnis  v.  McGinnis,  1  Kelly,  496;  City  of  Phi  la. 
V.  Davis,  1  Wharton,  490;  Miller  v.  Springer, '20  P.  F.  Smith,  273; 
Timberlake  v.  Parrish,  5  Dana,  345.] 

"Where  a  testator  holds  property  with  another  in  joint  tenancy, 
since  on  his  death  without  severance  the  whole  will  go  to  the  sur- 
viving joint-tenant,  it  will  not  pass  by  a  general  bequest  in  the  tes- 
tator's will  to  a  third  party  so  as  to  raise  a  case  of  election  against 
the  surviving  joint  tenant  taking  other  benefits  by  the  will.  Thus, 
where  a  testator  both  before  and'after  making  his  will,  transferred 
certain  Government  stock  unto  the  names  of  himself  and  his  wife, 
and  by  his  will  made  a  general  bequest  of  all  his  funded  p»roperty 
or  estate  of  whatsoever  kind  to  trustees  for  his  wife  for  her  life, 
and  after  her  decease  as  therein  mentioned,  it  was  held  that  the 
will  did  not  purport  to  dispose  of  the  stock  in  terms  sufficiently 
clear  and  distinct,  or  to  put  the  wife  upon  her  election  {Dummer\. 
Pitcher,  2  My.  &  K.  262;  Blonmart  v.  Player,  2  S.  &  S.  507;  Crabt) 
V.  Grahb,  1  My.  &  K.  511;  5  Sim.  35;  Smith  v.  Lyne,  2  Y.  &  C.  C. 
C.  345;  Allen  v.  Anderson,  5  Hare,  163;  Seaman  v.  Woods,  24 
Beav.  372;  and  see  Poole  v.  Adling,  10  W.  R.  337);  for 
[  '"  414  ]  in  order  to  raise  a  case  *  of  election  in  such  a  case  the 
stock  in  question  must  be  specifically  and  clearly  referred 
to:  Coatesy.  Stevens,  1  Y.  &  C.  Ex.  66;  Grosvenor  y.  Durston,2^ 
Beav.  97. 

But  a  testator  may  in  his  will  itself  show  an  intention  under  a 
general  devise  to  dispose  of  lands  which  are  not  absolutely  his  own, 
as  for  instance  by  describing  them  as  being  in  the  occupation  of 
himself  or  his  tenants  :  See  Honyivood  v.  Forster,  30  Beav.  14.  [The 
doctrine  of  election  is  applicable  to  remote  and  contingent  interests 
as  well  as  to  those  which  are  certain  and  immediate:  McQueen  v. 
McQueen,  2  Jones  Eq.  16.] 

So  if  a  testator  devise  land  in  a  particular  locality,  if  there  is 
any  property  of  the  testator  answering  the  description  it  will  be 
confined  to  that:  RancUffe  v.  Lady  Parky ns,  6  Dow.  149;  Maddison 
V.  Chapman,  1  J.  &  H.  470. 

The  rule  of  election,  the  subject  of  this  note,  which  depends,  as 
before  observed,  upon  an  implied  condition,  will  not  .be  excluded 
by  the  parties  being  expressly  put  to  their  election,  as  between  the 
benefits  conferred  upon  them,  and  sums  due  to  them  from  the  per- 
son conferring  such  benefits.  See  Wilkinson  v.  Dent,  6  L.  B.  Ch. 
App.  339.  There,  a  testatrix  devised  -'all  and  singular  the  estate 
470 


STIIEATFIELD  V.  STUKATFIKLD.  ■■  415 

and  mines  of  Aroa,"  to  trustees  in  trust  for  sale,  and  gave  to  T. 
Dent  10,()(K)/.,  which  was  to  be  taken  in  full  satisfaction  of  any 
suras  which  she  raight  owe  him  at  her  decease,  and  to  W.  Dent 
3000/.,  which  she  declared  was  to  be  taken  in  satisfaction  of  any 
rent-charge  out  of  a  certain  part  of  her  real  estate.  Her  will  con- 
tained the  usual  devise  of  trust  and  mortgage  estates.  She  was  in 
possession  of  the  entirety  of  the  Aroa  estate,  but  was  owner  only 
of  one  moiety,  being  in  possession  of  the  other  moiety  by  virtue  of 
a  mortgage,  the  money  due  upon  which  w^as  subject  to  trusts,  under 
which  T.  Dent  and  AV.  Dent  on  her  death  became  entitled,  each  to 
one  fifth.  It  was  held  by  the  Lords  Justices,  affirming  the  decision 
of  Lord  Romilly,  M.  K.,  that  T.  Dent  and  W.  Dent  were  put  to 
their  election  between  the  benefits  they  took  under  the  will,  and 
their  shares  in  the  mortgage  money.  "The  questicm,"  said  Lord 
Justice  James,  "is,  whether  there  is  testamentary  bounty  to  per- 
sons Avhose  estates  and  rights  are,  under  another  part  of  the  will, 
interfered  with.  It  appears  to  me  clear,  that  this  question  must  be 
answered  in  the  affirmative,  though,  before  the  amount  of  the  bounty 
can  be  ascertained,  the  amount  of  the'claims  which  the  legatees  had 
against  the  testatrix  must  bo  ascertained."  See  also  Coutts  v,  Ac- 
worfh,  9  L.  K.  Eq.  519,  and  consider  Sijuge  v.  Synge,  9  L.  R.  Ch. 
App.  riS;  varying  the  decision  of  James,  L.  J.,  sitting  for  a  Y.-C. 
reported  15  L.  11.  Eq.  389. 

But  the  ordinary  doctrine  of  election  may  be  exiluded  by  an  ap- 
parent expression  of  intention  by  a  testator  that  only  one  of  the 
gifts,  to  an  object  of  his  bounty,  is  conditional  on  his  giv- 
ing up  *  what  a  testator  purports  to  take  away  from  bim.  [  *  415  ] 
For  instance,  if  a  testator  had  an  eldest  son,  owner  of  a 
bit  of  property,  and  it  would  be  convenient  that  this  bit  of  property 
should  go  along  with  a  property  which  the  testator  is  devising  to 
his  second  son.  So,  the  testator  devises  this  bit  of  property  to  the 
second  son;  and  amongst  other  gifts  to  his  eldest  son,  he  gives  him 
a  piece  of  property  which  he  states  in  his  will  to  be  in  lieu  of  his 
bit  of  property  which  the  testator  purported  to  take  away  from  him. 
In  such  case,  the  eldest  son  would  merely  be  put  to  his  choice  be 
tween  those  two  bits  of  property:  East  v.  Cook,  2  Yes.  30,  as  ex- 
plained by  Lord  Justice  James,  in  Wilkinson  v.  Dent,  G  L.  11.  Ch. 
App.  341.  See  also  Bar  v.  Bor,  3  Bro.  P.  C.  Toml.  ed.  1G7; 
Fijiche  V.  Fytche,  19  L.  T.  Rep.  343;  Coote  v.  Gordon,  11  Ir.  Rep. 
Eq.  ISO. 

With  regard  to  deeds,  a  question  of  election  of  a  different  kind  to 
that  applicable  to  wills  may  be  raised,  without  their  being,  as  in  the 
case  of  wills,  {ante,  \\  409)  a  clear  intention  on  the  part  of  the  set- 
tlor or  others  to  dispose  of  property  which  was  not  his  own.  The 
principle  upon  which  cases  of  election  arc  raised  in  deeds  being  that 
which  Lord  Eedesdale  in  Birmingham  v.  Kincan,  2  S.  &  L.  444, 
448,  states  to  be  the  general  foundation  of  the  law  of  election,  viz., 
that  a  person  cannot  accept  and  reject,  or  according  to  the  terms  of 

471 


*416  BTREATFIELD  V.  STREATFIELD. 

the  Scotch  law  canuot  approbate  and  reprobate,  under  the  same  in- 
strument. Thus  if  a  person  comes  in  directly  under  a  settlement, 
and  asks  to  have  the  benefit  of  such  of  its  provisions  as  give  him  an 
advantage,  and  at  the  same  time  claims  adversely  to  what  was  in- 
tended to  be  the  rest  of  the  settlement,  because  it  was  not  binding, 
then  a  case  of  election  arises.  See  Broicn  v.  Brown,  2  L.  R.  Eq. 
481.  There  marriage  articles  executed  when  a  lady  was  a  minor 
contained  a  covenant  by  the  husband  to  settle  her  interest  in  real  and' . 
personal  estate,  including  after- acquired  property,  on  the  usual 
trusts;  and  she  died  without  having  confirmed  the  articles,  leaving 
her  husband  surviving,  and  an  only  child,  her  heiress-at-law,  who 
claimed  an  interest  under  the  articles  in  the  personal  estate  and  ,ilso 
claimed  the  real  estate  attempted  to  be  settled  as  heiress-at-laAV  of 
her  mother.  It  was  held  by  Lord  Romilly,  M.  R.,  that  the  heiress- 
at-law  was  put  to  her  election  whether  she  would  take  under  or 
against  the  settlement.  "  In  the  present  case,"  said  his  Lordship, 
"the  plaintiff  comes  in  and  claims  directly  under  the  limitation  of 
the  personal  estate  for  her  benefit  under  the  settlement  and  claims 
the  real  estate  adversely  to  the  settlement  on  the  ground  that  in  the 
event  the  settlement  did  not  bind  it.  I  think,  therefore,  that 
[*  416  ]  she  claims  beneficially  under  the  settlement  directly,  ''and 
that  consequently  she  must  elect  whether  she  will  t-ake  ad- 
versely to  it  or  under  it;  if  the  latter,  she  must  give  effect  to  the 
whole  of  it  as  far  as  she  can."  And  see  also  Anderson  v.  Abbott,  23 
Beav.  457;  Willonglibyy.  Middleton,  2  J.  &  H.  344,  8  L.  R.  Ch.  App. 
590;  Codrington  v.  Lindsay,  8  L.  R.  Ch.  App.  578;  S.  C,  nom.  Cod- 
ringtony.  Codrington,  7  L.  R.  Ho.  Lo.  854;  Griffith- Boscaicen  v. 
Scott,  26  Ch.  D.  358. 

[The  doctrine  of  election  rests  not  on  the  particular  provisions  of 
the  instrument  which  raises  the  election,  but  on  the  presumption  of 
a  general  intention  in  the  authors  in  an  instrument,  that  effect  shall 
be  given  to  every  part  of  it:  Wiltbanks  v.  Wiltbanks,  18  111.  17; 
Marriott  v.  Badger,  5  Md.  306;  Clay  r.  Hart,  7  Dana,  1;  Van  Duyne 
V.  Van  Duyne,  1  McCart.  49.] 

Where,  however,  a  person,  as,  for  instance,  an  heir-at-law  of  an 
infaat,  claims  property  as  not  being  bound  by  a  settlement  made  by 
the  infant,  if  he  has  no  benefit,  and  claims  none  under  the  settle- 
ment, he  may  assert  his  right,  there  being  no  case  of  election. 
{Campbell  v.  Ingilby,  21  Beav.  567;  1  De.  G.'&  Jo.  393:  but  see  this 
case  quoted  8  L.  R.  Ch.  App.  593);  and  he  is  entitled  to  do  this, 
though  it  may  be,  from  extraneous  circumstances,  and  by  some  sep- 
arate and  independent  cause,  he  has  obtained  some  benefit  under  the 
settlement.  Per  Lord  Romilly,  M.  R.,in  Broirn  v.  Broivn,  2  L.  R. 
Eq.  485. 

For  the  application  of  the  principle  of  approbation  and  reproba- 
tion to  voluntary  deeds,  see  Llewellyn  v.  Mackworth,  Barnard.  Ch. 
Rep.  44-5;  Anderson  v.  Abbott,  23  Beav.  457;  to  cases  of  contract  for 
valuable  consideration  resting  in  articles,  see  Savill  v.  Savill,  2  Coll. 
472 


STREATFIELD  V.   STREATFIELD.  *  417 

721;  Broivn  v.  Brown,  2  L.  11.  Eq.  481;  to  coutracts,  for  value  com- 
pletely executed  by  conveyance  and assigniiienls, see B'ujlund  v.  Hud- 
dlcston,  3  Bro.  C.  C.  285  n. ;  Cheticynd  v.  Meehcood,  4  Br(x  P.  C.  435, 
ed.  1784;  Green  v.  Green,  2  Mer.  8(5;  iJacoa  v.  Coshy,  4  De.  G.  A:  Sm. 
201;  Mosley  v.  11  arc/,  2<J  13eav.  407;  WilluiKjhbij  v.  Middleton,  2  J.  & 
H.  344. 

The  question  has  been  raised  whether,  where  a  testator  makes  two 
or  more  separate  devises  or  bequests,  of  his  own  property  the  devisee 
is  bound  to  elect  to  take  all  or  none  of  the  <,nfts,  or  whether  he  may 
accept  what  is  beneficial  and  reject  what  is  burdensome.  These 
cases,  though  at  lirst  sight  similar,  are  in  reality  different  from  cases 
of  election,  properly  bo  called,  which,  as  we  have  before  seen,  arise 
where  a  person  disposes  of  that  which  is  not  his  oicn  (ante,  j).  400), 
and  confers  upon  the  real  owner  of  the  property  olher  benefits,  in 
which  case  it  is  at  onco  implied  independently  of  any  intention  ex- 
pressed upon  the  face  of  the  instrument,  that  the  party  upon  whom 
such  benefits  are  conferred  must  elect  between  his  own  property  and 
such  benefits.  But  where  the  gifts,  whether  beneficial  or  onerous, 
are  all  of  them  the  property  of  the  testator,  in  the  absence  of  the  in- 
tention of  the  testator  to  make  the  acceptance  of  the  bm-den  a  condi- 
tion of  the  benefit  {Talbot  v.  Lord  Radnor,  3  My.  L  K.  252; 
Green  \.- Britten,  42  L.  J.  Ch.  187;  Fairclough  \.  '^  John-  [*417] 
stone,  10  Ir.  Ch.  442;  Warren\.  Biidall,  1  J.  &  H.  13;  and 
see  Long  y.  Kent,  13-AV.  R  ( V.-C.  ^. )  901 )  the  devisee  may  take  what 
is  beneficial  and  reject  what  is  onerous  {Andrew  v.  Trinity  Hall,  9 
Ves.  525;  Moffettv.  Bates,  3  Sm.  &  G.  408;  Warren  y.  Rudall,\  J.  &H. 
1 ;  Aston  v.  Wood,  22  W.  E.  893;  43  L.  J.  Ch.  715;  Syer  v.  Gladstone, 
30Ch.  D.  014.) 

But  where  the  question  arises  upon  a  single  and  undivided'gift, 
such  gift  is  prima  facie  evidence  that  it  was  the  testator's  intention 
that  the  gift  should  be  one,  and  that  it  was  the  testator's  inten- 
tion that  the  legatee  should  either  take  it  all  or  take  none  of  it: 
Guthrie  v.  Walrond,  22  Ch.  D.  573,  577;  Green  v.  Britten,  42  L.  J. 
Ch.  187. 

But  even  in  such  a  case  the  Court  might  sometimes  bo  able  to  dis- 
cover some  subtle  indication  of  an  intention  that  the  legatee  should 
be  at  liberty  to  take  part  of  the  gift  and  leave  the  rest.  Per  Fry, 
J.,  in  Guthrie  v.   Walrond,  22  Ch.  D.  577. 

In  contradistinction  to  the  decisions  last  noticed,  the  rule  as  to 
election,  properly  so  called  is  to  be  confined  to  a  gift  under  a  will, 
and  a  claim  dehors  the  will,  and  adverse  to  it,  and  is  not  to  be  ap- 
plied as  between  one  clause  in  a  will  and  another  clause  in  the 
same  will  as  in  the  case  of  deeds.  See  Wollaston  v.  King,  8  L.  K. 
Eq.  105;  Wallinger  v.  WalUnger,'^  L.  R  Eq.  301;  Burton  \.  Xerc- 
bery,  1  Ch.  D.  241;  Bizzey  v.  Flight,  3  Ch.  D.  209;  V.'arren  v.  Eii- 
dall  1  J.  &  H.  1. 

Although,  under  the  old  law,  a  devise  to  the  heir  was  in  a  certain 
sense  inoperative,  as  he  took  by  descent  as  heir,  and  not  by  purchase 

473 


*  418  STREATFIELD  V.   STREATFIELD. 

as  devisee,  it  has  been  held,  ever  since  the  decision  of  Noys  v.  Mor- 
daiint,  to  be  a  sufficient  gift  to  him  of  the  testator's  property  to  raise 
a  case  of  election,  should  the  testator  devise  or  bequeath  to  another, 
property  belonging  to  the  heir.  (Welby  v.  Welby,  2  V.  &  B.  190; 
Anon.,  Gilb.  15;  Thellusson  v.  Woodford,  13  Yes.  209;  *S'.  C,  1 
Dow.  249,  nom.  JRendelsham  v.  Woodford;)  a  fortiori  will  the  heir 
now  be  put  to  his  election,  since,  by  the  Act  for  the  Amendmeot  of 
the  Law  of  Inheritance  (3  &  4  Will.  4,  c.  106)  where  lands  are  de- 
vised by  the  will  of  a  testator  dying  after  the  31st  of  December, 
1833,  to  the  heir,  he  will  take  as  devisee  by  purchase,  and  not  by 
descent.     See  Schroder  v.  Schroder,  Kay,  578. 

No  case  of  election  will  be  raised  where  there  is  a  want  of  capacity 
to  devise  real  estate  by  reason  of  infancy.  Thus,  under  the  old 
law,  where  an  infant,  whose  will  was  valid  as  to  personal,  but  in- 
valid as  to  real  estate,  gave  a  legacy  to  his  heir-at-law,  and  devised 
real  estate  to  another  person,  the  heir-at-law  would  not  have  been 
obliged  to  elect  between  the  legacy  and  the  real  estate,  which 
descended  to  him  in  consequence  of  the  invalidity  of  the 
[*418]  devise;  he  *  might  take  both:  Hearle  v.  Greenbank,  3 
Atk.  695,  715;  1  Ves.  298. 

Nor  will  a  case  of  election  be  raised  if  there  is  a  want  of  capacity  to 
bequeath  arising  from  coverture.  [As  a  general  rule,  a  feme  covert 
may  elect  but  she  must  do  so  with  the  assistance  of  a  Court  of  equity  so 
as  to  make  the  election  binding  on  her  property  thereafter  acquired.] 
Thus,  wheie  a  feme  covert  made  a  valid  apjDointment  by  will  to  her 
husband,  under  a  power,  and  also  bequeathed  to  another  personal 
estate,  to  which  the  power  did  not  extend,  the  husband  was  not  put 
to  his  election,  but  was  held  to  be  entitled  to  the  benefit  conferred 
upon-  him  by  the  power,  and  also  to  the  property  bequeathed  by  his 
wife,  to  which  he  was  entitled  jure  mariti:  (Eich  v.  Cockell,  9  Yes. 
369.  See  also  Blaiklock  v.  Grindle,  7  L.  E.  Eq.  215).  But  if  the 
personal  estate  bequeathed  by  the  wife,  had  been  her  separate 
property,  although  no  question  of  election  would  arise  (because 
the  wife  had  not  attempted  to  dispose  of  the  property  of  her  hus- 
band), the  legatee  would  be  clearly  entitled  to  his  legacy. 

"With  regard  to  infants,  however,  it  must  be  remembered  that  the 
Wills  Act,  (1  Yict.  c.  26),  s.  7,  renders  them  incapable  of  making 
a  will  even  of  personalty.  [With  regard  to  election  by  infants, 
the  usual  practice  is  to  direct  an  inquiry  what  would  be  most  bene- 
ficial to  the  infant.  In  some  cases  the  Court  will  elect  for  the  in- 
fant without  a  reference  to  Chambers:  Seton  on  Decrees,  933,  936.] 

Previous  to  the  Wills  Act  (1  Yict.  c.  26),  where  a  testator  by  a 
will,  not  properly  attested  for  the  devise  of  freeholds,  but  sufficient 
to  pass  personal  estate,  devised  freehold  estates  away  from  his  heir, 
and  gave  him  a  legacy,  the  question  has  arisen,  whether  the  heir- 
at-law  was  not  obliged  to  elect  between  the  freehold  estate  which 
descended  to  him  in  consequence  of  the  devise  being  inoperative, 
and  the  legacy;  it  is  clearly  settled  that  he  would  not  be  obliged  to 
474 


STREATFIELT)  V.  STRF.ATFIELD.  '  411) 

elect  (Sheddon  v.  Goodrich,  8  Ves.  481 ;  Gardiner  v.  Fell,  1  J.  & 
W.  22;  Wil.soa  v.  llY/.son,  1  De  G.  &  Sm.  152;  and  BOf^  Middlebrook 
V.  Bromleij,  11  W.  11.  (V.-C.  K. )  712;)  unless  thn  legacy  were  given 
to  him  with  an  express  condition,  that  if  he  disputed  or  did  not 
comply  with  the  whole  of  the  will,  he  should  forfeit  all  benefit  un- 
der it:  BougliUm  v.  BouglUon,  2  Ves.  12;  Sheddon  v.  Goodrich,  8 
Ves.  490.     See  also  Brodie  v.  Brady,  2  V.  &  B.  180. 

These  questions  will  not  arise  under  wills  coming  within  the 
Wills  Act  (1  Vict.  c.  26),  because  if  they  are  sufficiently  attested 
for  the  bequest  of  a  jiersonal  legacy,  they  will  also  pass  freehold 
estates. 

Previous  to  the  Wills  Act  (1  Vict.  c.  20),  a  testator  could  not  de- 
vise after-acquired  lands,  for  although  by  his  will  he  devised 
lands  of  which  he  should  be  seised  at  the  time  of  his  decease,  they 
would  descend  to  his  heir:  Bunker  v.  Coke,  1  Bro.  P.  C.  199;  ,S'. 
a  1  Salk.  284;  Holt's  Itep.  248;  Fitzger.  228:  the  reason  being 
that  the  Statute  of  Wills  (82  Hen.  8,  c.  1)  gives  the  power  of  dis- 
position by  will  of  lands  only  to  persons  having  lands,  but  does  not 
give  power  to  persons  not  having  lands,  to  make  any  disposition  of 
such  as  they  shall  have. 

AVhere  in  such  case  a  testator  *  devised  after- acquired  [  *  419  J 
lands  away  from  his  heir,  which  he  nevertheless  took  by 
descent,  he  did  so  subject  to  the  application  of  the  doctrine  of  elec- 
tion; for  the  rule  in  such  cases  was,  that  if  the  testator  showed  a 
clear  intention  of  disposing  of  after-acquired  estates,  the  heir  was 
obliged  to  elect  between  the  after-acquired  estates  which  would 
descend  to  him,  and  any  benefits  given  him  by  the  will:  Thellus- 
son  Y.  Woodford,  13  Ves.  209;  S.  C.  Rendles'ham  v.  Woodford,  1 
Dow.  249;  Churchman  \.  Ireland,  4  Sim.  520;  1  Buss.  &  My.  250; 
Greenwood  v.  Penny,  12  Beav.  403;  Schroder  v.  Schroder,  Kay, 
578,  S.  C,  on  appeal,  24  L.  J.  (N.  S.),Ch.  510;  Hancev.  Truivhitt, 
2  J.  &  H.  210 

But  here,  again,  the  law  has  been  altered  by  1  Vict.  c.  20,  s.  24, 
which  enacts,  "  That  every  will  shall  be  construed  with  reference  to 
the  real  and  personal  estate  comprised  in  it,  to  speak  and  take  ef- 
fect as  if  it  had  been  executed  immediately  before  the  death  of  the 
testator,  unless  a  contrary  intention  shall  appear  by  the  will." 

Previous  to  55  Geo.  3  c.  192  (which  rendered  a  surrender  of  copy- 
holds to  the  use  of  wills  unnecessary  for  the  future),  it  was  held, 
that  the  heir  to  whom  copyholds  descended,  in  consequence  of  their 
not  having  been  surrendered  to  the  use  of  a  will,  was  obliged  to 
elect  between  the  copyholds  and  any  benefit  he  mav  have  taken 
under  the  will,  ^oe' Ihiett  \.  Wilkes,  Amb.  430;  2  Eden,  187; 
Rumbold  v.  Rumbold,  3  Ves.  05;  Pettiivard  v.  Prcscotf,  7  Ves.  541; 
but  in  Judd  v.  Pratt,  13  Ves.  168,  15  Ves.  390,  the  heir  was  not 
compelled  to  elect,  because  the  testator,  having  freeholds  as  well  as 
copyholds,  was  held  not  to  have  sufficiently  indicated  his  intention 
to  pass  the  copyholds  by  a  mere  general  devise  of  all  his  real  estate. 

475 


*  420  STREATFIELD  V.   STREATFIELD. 

The  heir  of  heritable  property  in  Scotland,  becoming  entitled  to 
it  in  consequence  of  the  will,  by  which  it  is  devised  to  another,  not 
being  conformable  to  the  solemnities  required,  by  the  law  of  Scot- 
land, and  taking  also  under  the  same  will  real  or  personal  property 
in  this  country,  will  be  compelled  to  elect  between  the  heritable 
property  which  has  descended  to  him  as  heir,  and  the  benefits  given 
to  him  by  the  will:  (Brodie  v.  BaiTy,  2  V.  &  B.  127;   Orrell  v.  Orrell, 
6  L.  E.  Ch.  App.  302;  Deiuar  v.  Mailland,  2  L.  K  Eq.  834,  as  to 
land  in  St.  Kit's;  UrCqll   v.    M'Call,  Dru.  Ca.  t.  Sugd.,   283;  Har- 
rison \\  Harrison,  8  L.  R.  Ch.  App.  342;  see  also  2   Seton  on  De- 
crees, 933,  4th  ed.),  secus,  if  it  does  not  appear  clearly  that  the  tes- 
tator intended  to  pass  his  Scotch  estates:  Johnson  v.  Telfourd,  1 
Buss.  &  My.  244;  Allen  v.  Anderson,  5  Hare,  163;  Maxwellv.  Max- 
ivell,  16  Beav.  106;  2  De  G.  Mac.  &  G.  705;  Lamb  v.  Lamb, 
r  *420]  5  W.  R.  (V.-C.  K.)  720;  *  Maxwell  v.  Hyslop,  4  L.  R.  Eq. 
407. 
A  widow  may  at  law  be  piit  to  her  election  by  a  gift  conferred 
upon  her  expressly  in  lieu  of  dower  ( Gosling  v.  Warburton,  Cro. 
Eliz.    128;    Lacey  v.    Anderson,   Choice   Cases  in  Chancery,    155; 
Boynton  v.  Boynton,  1  Bro.  C.  C.  445;  see  Dyke  v.  Rendall,  2   De 
G.  Mac.  &  G.  209;  Nottley  v.  Palmer,  2  Drew.  93;  Fijtchew  Fyfche, 
7  L.  R.  Eq.  494;  Sopwith  v.  Maughan,  30  Beav.  235),  which  would 
also  include  free  bench  and  dower  out  of  lands  which  the  testator 
had  no  power  to  devise.     Nottley  v.  Palmer,  2  Dr.  93;   Walker  v. 
Walker,  1  Yes.  54;   Wetherell  \.  Wetherell,  4Giff.  51. 

In  equity  she  may  in  the  will  of  her  husband,  be  put  to  her  elec- 
tion between  dower,  and  benefits  thereby  conferred  upon  her.  by  a 
devise  to  others  of  the  entirety  of  lands  out  of  which  she  is  dowable 
in  such  terms  as  to  be  inconsistent  with  the  assertion  of  her  right 
to  demand  a  third  of  such  lands  to  be  set  out  for  her  by  metes  and 
bounds.     See  Birmingham  v.  Kirican,  2  S.  &  L.  452,  453. 

But  unless  the  intention  to  exclude  the  widow  from  her  dower  be 
clear,  she  will  not  be  put  to  her  election.  Hence  it  has  been  long 
since  settled  in  cases  previous  to  the  Dower  act  (3  &  4  Will.  4,  c. 
105)  coming  into  operation,  that  a  devise  by  a  testator  to  his  widow 
of  a2:>art  of:  {Laivrence  v.  Lawrence,  2  Vern.  305;  2  Freem.  234, 
235;  3  Bro.  P.  C.  483,  Toml.  Ed.  See  also  Lemonv.  Lemon,  8  Vin. 
Abr.'  "Devisa^'  pj^GO,  pi.  45;  French  v.  Davies,  2  Ves.  jun.  572; 
Strahan  v.  /Ktton.  3  Ves.  249;  Lord  Dorchester  v.  Earl  of  Effing- 
ham, Coop.  319;  Broivn  v.  Parry,  2  Dick.  085;  Incledon  v.  North- 
cote,  3  Atk.  430,  436;  and  Gibson  v.  Gibsofi,  1  Drew.  42),  or  to  trus- 
tees of  the  whole  of  the  lands  out  of  which  she  is  dowablo  upon 
trust  for  sale  (Ellis  v.  Lewis,  3  Hare.  310),  even  although  the  inter- 
est of  a  part  of  the  proceeds  of  the  sale  is  given  to  her.  (Ellis  v. 
Leicis,  3  Hare,  310;  Gibson  v.  Gibson,  1  Drew.  42,  but  see  Parker 
V.  Downing,  4  L.  J.  Ch.  198),  or  there  is  a  direction  that  -the  rents 
and  profits  are  in  the  mean  time  to  be  applied  in  the  same  way  as 
the  income  to  arise  from  the  produce  of  the  sale:  [lb.  57.  Bend- 
476 


STREATFIELD  V.   STRKATFIELD.  *  421 

ing  V.  Bending,  Z  K.  &  J.  257),  or  a  devise  J)y  tlio  husband  of  an  an 
nuity  or  rent-charge  to  the  widow,  charged  upon  such  lands  oven 
althougli  he  gives  her  a  power  of  distress  {Doirson  v.  Bell,  1  Kee. 
70 1).  fSee  Pitis  v.  Snowilen,  1  13io.  0,  C.  2'J2,  n. ;  Pearson  \.  Pear- 
son, 1  Bro.  C.  C.  291;  Foster  v.  Cook,  3  Bro.  C.  C.  347;  Dowson  v. 
Bell,  1  Kee.  7(31;  Harrison  v.  Harrison,  1  Kee.  705;  and  Holdichv. 
Holdich,  2  Y.  &  C.  C.  C.  18;  Norcott  v.  Gordon,  14  Sim.  258,  over- 
ruling Ar?zo?d  V.  Kempstead,  Amb.  400;  S.  C,  2  Eden,  230; 
Jones  V.  Collier,*  Amb.  730;  and  IFaAe  v.  Wake,  3  Bro.  C.  C.  [  *  421  ] 
255;  5^.  C,  1  Ves.  jun.  835),  have  been  held  not  to  be  in- 
consistent with  her  right  to  have  dower  assigned  to  her  by  metes 
and  bound's,  and  consequently  that  she  was  not  obliged  to  elect  be- 
tween dower  and  the  benelits  conferred  upon  her  b}'  the  will.  The 
case  of  Villa  Real  v.  Lord  Galivay,  1  Bro.  C.  C.  292,  n.,  though 
sometimes  cited  as  an  authority  for  the  proposition,  that  a  widow 
will  bo  put  to  her  election  by  the  mere  gift  of  a  rent  charge  or  an- 
nuity out  of  the  lands  of  which  she  is  dowable,  was  decided,  it 
seems,  upon  the  ground  that  certain  directions  in  the  will  as  to  the 
management  of  the  whole  estate,  the  payment  of  the  annuity,  and 
the  accumulations  during  the  minority  of  a  child,  were  inconsistent 
with  the  setting  out  a  third  part  of  the  estate  by  metes  and  bounds. 
8ee  Birmingham  v.  Kiriran,2  S.  &  L.  453;  Roadley  v.  Dixon,  3 
Buss.  202;  Hall  v.  Hill,  1  D.  &  AV.  103;  S.  C,  1  C.  &  L.  129;  Dow- 
son  v.  Bell,  1  Kee.  701;  Thompson  v.  N^elson,  1  Cox,  447;  Harrison 
V,  Harrison,  1  Kee.  705. 

A  testator's  dealings  moreover  in  his  lifetime  cannot,  it  seems,  be 
taken  into  consideration  in  consti'uing  his  will,  Avith  reference  to 
the  question  whether  he  intended  to  exclude  his  wife  from  herdower, 
when  the  will  contains  no  reference  to  those  dealings.  See  Gibson 
V.  Gibson,  1  Drew.  42. 

The  provisions  which  have  generally  been  held  inconsistent  with 
the  widow's  legal  right  to  dower  out  of  lands,  are  those  which  pre- 
scribe to  the  devisees  thereof  a  certain  mode  of  enjoyment,  which 
shows  the  testator's  intention  that  they  should  have  the  entirefij  of 
the  property.  Thus,  in  Birmingham  v.  Kiriran,  2  S.  &  L.  444,  the 
testator  devised  his  house  and  demesne  to  trustees  upon  trust  to 
permit  his  wife  to  enjoy  the  same  for  life,  she  paying  13s.  yearly  for 
every  acre,  to  keep  the  house  in  repair,  and  not  to  let,.cxcept  to  the 
person  who  should  be  in  possession  of  the  remainder;  and  ho  devised 
the  I'esidueof  his  lands,  subject  to  debts  and  legacies,  to  A.  for  life, 
remainder  to  B.  in  fee.  The  question  Avas  as  to  the  wife's  right  of 
dower:  iirst,  in  tho  part  devised  to  her;  secondly,  in  the  residue. 
"The  result,"  said  Lord  Pedesdale,  "of  all  the  cases  of  implied  in- 
tention seems  to  be  that  tho  instrument  must  contain  some  provision 
inconsistent  with  the  assertion  of  a  right  to  demand  a  third  of  the 
land  to  bo  set  out  by  metes  and  bounds.  .  .  .  Now,  in  the  present 
case,  it  is  clear  the  assertion  of  a  right  of  dower  as  to  tho  house  and 
'demesne  would  be  inconsistent  with  the  dispositions  of  the  house 
'  477 


*  423  STREATFIELD  V.   STREATFIELD. 

and  demesne  contained  iu  the  will  ;  and  therefore  the 
[*422  ]  widow  eaunot  *  have  both.  The  house  and  demesne  are 
devised  with  the  rest  of  the  estate  to  trustees.  That  devise 
taken  simply  might  be  subject  to  the  widow's  right  of  dower,  but  it 
is  coupled  with  a  direction  that  she  shall  have  the  enjoyment  of  the 
house  and  demesne,  paying  a  rent  of  13.9.  an  acre,  which  must  be 
out  of  the  iL-hole.  Then  follow  directions  that  she  shall  keep  the  house 
and  demesne  in  repair,  that  she  shall  not  alien,  except  to  the  persons 
in  remainder;  directions  which  apply  to  the  whole  of  the  house  and 
demesne,  and  could  not  be  considered  obligations  on  a  person  claim- 
in  o-  by  dower.  It  was  clearly,  therefore,  the  intention  of  the  testator, 
that  the  wife  should  enjoy  the  whole  of  the  house  and  demesne 
under  a  right  created  by  the  will;  and  not  a  part  of  it  under  a  right 

which  she  previously  had,  and  part  under  the  will Then 

comes  the  question,  whether  the  implication  extends  to  the  rest  of 
the  estate?  I  cannot,  on  the  whole  of  the  case,  think  the  testator 
has  sufficiently  manifested  an  intent  that  this  beneficial  interest  in 
the  h^use  and  demesne,  given  upon  a  reserved  rent,  and  under  certain 
conditions,  should  be  considered  as  a  bar  of  dower  out  of  the  rest  of 
the  estate.  The  will  may  be  perfectly  executed  as  to  all  other  pur- 
poses without  injury  to  the  claim  of  dower,  with  respect  to  the  rest 
of  the  estate;  it  may  be  mortgaged  or  sold,  subject  to  that  claim.  " 
And  see  Goodfelloiv  v.  Goodfelloiv,  18  Beav.  350;  see,  however, 
Strahan  v.  Sutton,  3  Ves.  249. 

And  a  devise  of  a  house  or  farm,  in  terms  showing  that  a  personal 
use  and  occupation  of  the  whole  by  the  devisee,  was  intended,  has 
been  held  inconsistent  with  the  .widow's  right  to  dower  out  of  that 
house  or  farm,  and  consequently  put  her  to  her  election  between  her 
right  to  dower  out  of  such  house  or  farm,  and  other  benefits  con- 
ferred upon  her  by  the  will.  3Iiall  V.  Brain,  4  Madd.  119;  Butcher 
V.  Kemp.  5  Madd.  61;  Roadleij  v.  Dixon,  3  Russ.  192. 

So  moreover  Avhere  a  power  of  leasing  an  estate  is  given  to  trus- 
tees, the  widow  has  been  put  to  her  election  between  dower  and  the 
benefits  conferred  upon  her  by  the  will,  inasmuch  as  the  exercise  of 
the  power  has  been  held  to  ba  inconsistent,  with  the  assertion  of  her 
right  to  dower  by  metes  and  bounds.  (See  Hall  v.  Hill,  1  Dr.  & 
War.  94;  1  Conn.  &  L.  120,)  although  we  have  before  seen  a  trust 
for  sale  was  held  not  to  be  so,  ante,  p.  420.  See  alpo  Reynard  v. 
5pe)zce,  4  Beav.  103  ;  Taylor  v.  Taylor,  1  Y.  &  C.  C.  C.  727;  O'Hara 
v.  Chaine,  1' J.  &  L.  G52;  Holdich  v.  Holdich,  2  Y.  &  C.  22;  Loives 
V.  Lowes,  5  Hare,  401  ;  Robinson  v.  Wilson,  13  Ir.  Eq.  Rep.  168, 
183;  Pepper  \.  Dixon,  17  Sim.  200;  Grayson  \.  Deakin, 
[  *  423  ]  3  De  Gex  &  Sm.  298;  *  Parker  v.  Soicerby,  1  Drew.  488  ; 
4  De  Gex,  Mac.  &  G.  321  :  Taylor  v.  Linley,  5  Jur.  N.  S. 
701;  28  L.  J.  Ch.  686  (V.-C.  S.);  affirm o  1  on  appeal,  29  L  J.  Ch. 
534;   Thompson  v.  Burra,  16  L.  R.  Eq.  592. 

A  direction  moreover  to  cut  down  timber  on  any  part  of  the  es- 
tate would,  it  seems,  be  entirely  inconsistent  with  the  wife's  right  to 
478 


I 


STKEATFIKLD  V.  STIIEATFIELD.  '*  424 

dowor.  Ih.  It  must  bo  considered  tliut  Wurburton  v.  Warhurton, 
2  Sm.  &  Giff.  103  (which  seems  to  proceed  upon  a  misapprehension 
of  the  judgrnent  of  Lord  Si.  Leonards  in  Hull  v.  /////,  1  Dru.  & 
War.  94),  is  overruk^d. 

And  a  widow  has  been  compelled  to.  elect  between  her  free  bench 
in  customary  lands,  and  benelits  conferred  upon  her  by  a  wili,  where 
the  lands  out  of  which  she  was  entitled  to  free  bench  were  devised 
to  third  parties,  with  poxvers  of  management  and  leasing  inconsis- 
tent with  her  enjoyment  of  free  bench,  although  there  was  no  cus- 
tum  for  such  lands  to  bo  set  out  for  the  free  bench  of  a  widow  by 
metes  and  bounds  :  Thompson  v.  Biirra,  16  L.  R.  Eq.  502.  But 
see  AVilliams  on  Settlements,  p.  95. 

It  seems,  moreover,  that  where  a  testator  devises  the  whole  of  his 
property  in  general  terms,  and  it  is  manifest,  that  it  was  his  inten- 
tion, that  one  part  of  the  property  should  not  l)o  subject  to  dower, 
it  follows,  that  no  part  of  the  property  should  be  so  considered  ; 
Miall  V.  Brain,  4  Madd.  12(3;  Butcher  v.  Kemp,  5  Madd.  01 ;  Road- 
ley  V.  Dixon,  3  Russ.  192.  See  also  Hall  v.  Hill,  1  Dr.  &  War.  94; 
1  C.  &L.  120. 

Moreover,  where  a  testator  has  devised  lands,  of  which  his  widow 
is  dowable,  and  other  property,  to  her  and  othei-s  in  equal  sluires, 
it  has  been  held  that  the  widow  must  elect,  upon  the  ground  that 
if  she  took  her  dower  as  well  as  what  was  given  to  her  by  the  will,  it 
would  be  inconsistent  with  that  equality  which  the  testator  by  his 
disposition  therein  intended.  The  first  case  is  that  of  Chalniers  v. 
Storill,  2  V.  &  B.  222.  There  the  w^ords  of  the  will  were,  "  I  give 
to  my  dear  wife  A.,  and  my  two  children  B.  &  C,  all  my  estates 
whatsoever  to  be  equally  divided  amongst  them  whether  real  or  per- 
sonal." And  the  testator  specified  the  property  bequeathed  by  him 
as  consisting  of  freehold  ground-rents,  money  on  mortgage,  Ameri- 
can bank  stock,  an  estate  in  America,  &c.  Sir  W.  Grant,  M.  R.,  held, 
that  it  was  a  case  of  election,  the  claim  of  dower  being  directly  in- 
consistent with  the  disposition  of  the  will.  "  The  testator,"  ob- 
served his  Honor,  "  directing  all  his  real  and  personal  estate  to  be 
equally  divided,  the  same  equality  is  intended  to  take  place  in  the 
division  of  the  real  as  of  the  personal  estate,  which  cannot  be  if  the 
widow  first  takes  oat  of  it  her  dower,  and  then  a  third  of 
the  remaining  two-thirds.  Further,  by  describing  *his[*424] 
English  estates  he  excludes  the  ambiguity  which  Lord 
Thurlow  in  Foster  v.  Cook,  3  Bro.  C.  C.  347,  imputes  to  the  word 
'  my  estate,'    as  not  necessarily  extending  to  the  wife's  dower." 

As  to  the  last  remark  being  one  ground  fc»r  his  Honor's  decision, 
it  is  clear  at  the  present  day,'  if  not  in  the  time  of  Lord  Thurknv, 
that  such  a  devise  as  "  all  my  English  estates  "  would  merely  mean 
and  pass  the  testator's  English  estates,  subject  to  dower.  See  Bead  v. 
Crop.  1  Bro.  C.  C.  492;  Doivson  v.  Bell,  1  Kee.  701;  Gibson  v.  Gib- 
son, 1  Drew.  50.  The  other  and  principal  ground  upon  which  Chal- 
mers V.  Storil  was  decided — viz.,  that  equality,  which  was  intended, 

479 


*  425  STREATFIELD  V.  STREATFIELD. 

would  be  destroyed  by  letting  in  the  claim  to  dower — has  been 
followed  by  subsequent  judges.  See  Dickson  v.  Robinson,  Jac. 
503  ;  Robeiis  v.  Smith,  1  S.  &  S.  513;  Reynolds  \.  Tor  in,  1  Kuss. 
129;   Goodfelloiu  V.  Goodfelloiv,  18  Beav.  356. 

Although  Chalmers  v.  Storil  has  been  so  often  recognised  and 
followed  as  an  authority,  it  scarcely  seems  to  have  been  decided 
upon  correct  principles  ;  because  when  a  person  devises  all  his 
"estates"  to  his  widow  and  children,  "equally  to  be  divided  among 
them,"  he,  according  to  the  ordinary  rules  of  construction,  ought  to 
be  held  to  devise  only  what  belonged  to  him — viz.,  the  estate  sub- 
ject to  the  widow's  right  to  dower  ;  and  an  equal  division  of  the 
estate  after  the  assignment  of  the  widow's  dower  by  metes  and 
bounds  would  fully  satisfy  the  words  of  the  will.  See  1  Jarm.  on 
Devises,  402;  Ellis  v.  Leicis,  3  Hare,  315.  In  Bending  v.  Bending, 
3  K.  &  J.  261,  Sir  W.  Page-Wood,  V.-C,  stated  that  Chalmers  v. 
Storil  is  imperfectly  reported. 

If  a  man  devises  his  real  estate  from  his  heir  after  giving  his 
widow  a  provision  in  lieu,  satisfaction  and  bar  of  dower,  and  the  de- 
visee dies  in  the  lifetime  of  the  devisor,  the  heir  will  take  the  estate, 
but  the  widow  will  be  obliged  to  elect.  See  Pickering  v.  Lord  Stam- 
ford, 3  Yes.  337.  But  a  gift  by  a  testator  to  his  widow  in  lieu  of 
thirds  of  his  personal  property,  does  not  preclude  her  from  claiming 
her  share  of  the  personalty  under  the  Statute  of  Distributions  (22 
&  23  Car.  2,  c.  10)  in  the  event  of  the  failure  of  a  bequest  of  that 
property.  Pickering  v.  Lord  Stamford,  3  Ves.  332,  492.  See 
Sym2Json  v.  Hornsby,  cited  3  Ves.  335;  Wetherell  v.  Wetherell,  4 
Giff.  1. 

But  it  seems  that  the  principle  of  the  decision  in  Pickering  v. 
Stamford  will  not  apply  to  a  case  where  on  the  face  of  the  will, 
there  is  an  original  intestacy  as  to  a  part  of  the  personal  estate  : 
Lett  V.  Randall,  3  Sm.  &  G.  83,  91. 

A  provision  made  for  a  wife,  by  a  rent-charge  "for  her  jointure, 
and  in  lieu  of  dower  and  thirds  at  common  law,"  does  not 
[*425]  extend  to  *her  share  of  the  personal  estate  under  the 
Statute  of  Distributions  ;  Colleton  v.  Garth,  6  Sim.  19. 
But  the  addition  of  the  words  "out  of  any  real  or  personal  estate" 
has  been  held  to  do  so  [Gurley  v.  Gurley,  8  C.  &  F.  743;  and  see 
Thompson  v.  Watts,  2  J.  &  H.  !:91):  and  the  words  "in  lieu  of 
dower  or  thirds  at  common  law,  or  othericise,''  have  been  held  to  ex- 
tend to  a  wife's  free  bench  in  copvholds  :  Nottley  v.  Palmer,  2  Drew. 
93. 

With  regard  to  widows  married  since  the  1st  of  January,  1834, 
questions  of  election  can  scarcely  arise,  as  under  the  Dower  Act 
(3  &  4  Will.  4,  c.  105)  they  are  not  entitled  to  dower  of  any  land, 
absolutely  disposed  of  by  her  husband  in  his  lifetime  or  by  his  will 
(sect.  4)  and  it  may  be  barred  by  a  declaration  in  a  deed  (sect.  6) 
or  will  (sect.  7). 

And  where  a  husband  married  after  the  Dower  Act  (3  &  4  WilL 

480 


STREATFIELD  V.   STREATFIKLD.  *  120 

4,  c.  105)  came  into  operation,  devises  any  land  out  of  wliicb  bis 
widow  would  be  entitled  tu  dower  if  tbe  same  were  not  so  devised, 
or  any  estate  or  interest,  tberein  to  or  for  the  benefit  of  his  vidow, 
sucb  widow  will  not  be  entitled  to  dower  out  of  or  in  any  land  of 
ber  said  busband,  unless  a  contrary  intention  is  declared  by  bis  will 
(sect  9). 

On  tlae  otber  band  by  tbe  lOtb  section  of  tbo  Dower  Act  (3  &  4 
Will.  4,  c.  105)  it  is  enacted,  "tbat  no  gift  or  bequest  made  by  any 
busband  to  or  for  tbe  benefit  of  bis  widow,  of  or  out  of  bis  personal 
estate,  or  of  or  out  of  any  of  bis  land  not  liable  to  dower,  sball  de- 
feat or  prejudice  ber  rigbt  to  dower  unless  a  contrary  intention 
sball  be  declared  by  bis  will." 

Upon  tbe  construction  of  tbe  Dower  Act,  tbe  better  opinion  ap- 
pears to  be  tbat  a  husband  may  deprive  bis  wife  of  dower  under  tbe 
4tb  section  by  a  mere  general  disposition  of  bis  land  (Lace// v.  Hill, 
19  L.  R.  Eq.  349)  and  tbat  it  is  not  necessary  as  was  tbougbt  by 
Lord  Romilly  ^L  R.,  in  auotbercase,  Ibat  tbe  busband  sbould  point 
tbe  land  out  specifically  or  designate  it  in  some  way:  Rowland  \. 
Cuthbertson,  8  L.  R.  Eq.  469. 

It  is  clear  moreover  tbat  under  tbe  9th  section  of  tbe  Act,  a  gen- 
eral disposition  by  tbe  busband  of  bis  land  by  will,  under  wbicb 
his  wife  takes  a  partial  interest,  will  in  tbe  absenceof  a  contrary  in- 
tention, be»  sufficient  to  bar  ber  dower:  Rowland  v.  Cuthbertson,  8 
L.  R.  Eq.  466;  Lacey  v.  Hill,  19  L.  R.  Eq.  346. 

And  a  general  devise  by  a  busband  of  bis  real  estate  upon  trust 
to  sell  and  give  bis  widow  a  part  of  tbe  proceeds  even  in  tbe  shape 
of  part  of  the  capital,  or  of  any  income  of  the  proceeds  to  be  in- 
vested as  an  annuity,  is  a  gift  of  "an  estate  or  interest"  in  the 
land  for  the  benefit  of  the  widow  within  the  meaning  of  the  9th 
section,  and  will  therefore  be  sufficient  to  deprive  her  of 
*dower:  Lacey  v.  Hill,  19  L.  R.  Eq.  346,  350.  [  *426  ] 

The  result  will  be  the  same  as   to  free  bench  upon  a 
similar  devise  of  copvbolds,  though  not  surrendered  to  the  uses  of 
the  will:  Lacey  v.  Hill,  19  L.  R.  Eq.  346. 

The  doctrine  of  election  is  not  applicable  to  creditors.  Tbus,  if 
before  the  time  when  real  estate  was  made  assets  for  payment  of 
debts  a  testator  devised  land  in  payment  thereof,  and  bequeathed 
in  favour  of  other  persons  funds,  then  assets  for  payment  of  debts, 
it  was  held  that  the  creditors  were  not  put  to  their  election,  and 
might  assert  their  rights  against  such  funds,  without  giving  up 
their  claim  under  the  devise  to  the  land.  Kidney  v.  Coussmaker, 
12  Ves.  136.  See  also  Clark  v.  Guise,  2  Yes.  617.  In  Deg  v.  Deg, 
2  P.  AVras.  412,  418,  where  a  father  devised  his  own  estate  and  an 
estate  of  his  son's  for  the  payment  of  debts,  the  son  was  allowed  as 
a  creditor  of  his  father  to  share  with  the  otber  creditors  in  tbe  ben- 
efit conferred  upon  them  by  the  provision  for  payment  of  debts, 
without  being  obliged  to  give  up  his  own  estate.  But  these  ques- 
tions will  not  arise  often  now,  as  real  estates  are  liable  to  the  pay- 

31   WHITE  ON   EQUITY.  481 


*  427  STREATFIELD  V.   STREATFIELD. 

ment  of  debts  by  simple  contract  as  well  as  specialty.  See  3  &  4 
Will.  4  c.  104. 

The  doctrine  of  election  is  applicable  to  appointments  under  a 
power.  Thus  where  an  express  appointment  is  made  to  a  stranger 
to  the  power,  which  is  therefore  void,  and  a  benefit  is  conferred  by 
the  same  instrument  upon  a  person  entitled  in  default  of  appoint- 
ment, the  latter  will  be  put  to  his  election.  Sug.  Pow.  578,  8th  ed. ; 
Whistler  v.  Webster,  2  Ves.  Jun.  367;  Reid  v.  Reid,  25  Beav.  469; 
Ex  parte  Bernard,  6  Ir.  Ch.  Rep.  133;  Tomkynsv.  Blane,  28  Beav. 
422. 

If  the  donee  of  a  non-exclusive  power  of  appointment  among  a 
class  to  w^hom  this  property  is  limited  in  default  of  appointment, 
appoints  exclusively  to  one  object  and  by  the  same  instrument  con- 
fers benefits  on  the  others,  the  latter  will  be  put  to  their  election. 
"Thus  where  a  person  has  power  to  appoint  to  two,  and  he  appoints 
to  one  only,  and  gives  a  legacy  to  the  other,  that  is  a  case  of  elec- 
tion:" Sug.  Pow.  589,  8th  ed.;  Wollen  v.  Tawwer,  5  Ves.  218;  Vane 
V.  Lord  Dungannon,  2  S.  &  L.  118. 

So  where  a  testator  haVing  power  under  a  settlement  to  appoint 
the  settled  hereditaments  to  children  of  his  first  marriage  only,  ap- 
pointed the  settled  hereditaments  (describing  them  as  his  own 
property,)  in  favor  of  a  son  o.f  the  first  marriage,  subject  to  a 
charge  in  favor  of  his  other  children,  including  the  children  of  his 
second  marriage,  and  he  devised  property  of  his  own  to  the  same 
son,  subject  to  the  same  charges  in  favour  of  his  other 
[  *427  J  children  "so  as  to  equalize  the  shares  of  *all  his  children 
in  all  his  property,"  it  was  held  by  Fry,  J.,  that  a  case  of 
election  was  raised  in  favour  of  the  children  of  the  second  marriage: 
Wfdte  v.  White,  22  Ch.  D.  555. 

Where  the  donee  of  a  power  makes  a  valid  appointment  to  ob- 
jects of  the  power,  and  by  a  subsequent  instrument  after  the  expi- 
ration or  exhaustion  of  the  power  purports  to  revoke  the  former 
appointment  reappointing  in  favour  of  another  object,  and  by  the 
same  instrument  gives  benefits  to  the  former  appointees,  the  latter 
will  be  put  to  their  election.  See  Cooper  v.  Cooper,  6  L.  R.  Ch. 
App.  15;  7  L.  R.  Ho.  Lo.  53. 

So  where  a  person  having  a  power  to  appoint,  delegates  the  power 
(which  he  has  really  no  right  to  do)  to  another,  and  by  the  same 
instrument  confers  benefits  upon  the  objects  of  the  power,  they  can- 
not retain  the  benefits  given  to  them  by  the  will  and  also  claim  the 
property  against  the  execution  of  the  power  so  improperly  dele- 
gated:    Ingram  v.  Ingrain,  cited  1  Ves.  259. 

The  doctrine  of  election  is  also  applicable  where  there  is  a  revo- 
cation in  excess  of  the  power,  and  benefits  are  conferred  upon  the 
person  disappointed  by  such  revocation.  Thus  where  an  appoint- 
ment was  made  of  the  interest  of  a  fund  to  a  person  for  life  irrevo- 
cably, and  after  his  decease  the  fund  was  appointed  to  others  with 
power  to  the  appointor,  by  deed  or  will,  to  revoke  the  appointments 
482 


I 


STREATFIELD  V.  STREATFIELD.  *  423 

subsequent  to  the  life  interest,  and  the  appointor  afterwards,  siip- 
posin<^  lie  had  complete  donainion  over  the  fund,  revoked  all  the 
appointments  before  made,  <]jiving  the  person  entitled  to  the  interest 
of  the  fund  for  life  part  of  it  al)solutely,  and  the  remainder  of  the 
fund  to  others,  the  person  fo  whom,  under  the  first  appointuient,  a 
life  interest  was  given  in  the  whole  fund,  was  compelled  to  elect  be- 
tween the  life  interest  in  the  whole  fund,  and  his  interest  in  part 
of  the  fund  given  to  him  al)solutely,  under  the  second  appoint- 
ment. Contts  V.  Acicorth,  9  L.  R.  Eq.  519.  And  it  was  directed 
that  the  costs  .should  be  borne  by  each  share  in  proportion.  In 
other  words  the  taker  of  each  fchare  was  to  bear  the  proportion  of 
the  burthen  falling  to  the  share  he  took.   lb.  532. 

In  no  instance  however  has  a  case  of  election  been  raised  W'here 
a  testator  gave  no  property  absolutely  his  own  to  an  object  of  the 
power  out  of  which,  in  the  event  of  his  not  acquiescing  in  an  ap 
pointmeut  by  the  donee  to  a  person  not  an  object  of  the  power,  the 
latter  conld  bo  compensated.  In  re  Fowler's  Trust,  27  Beav.  302; 
Arm  strong  v.  Lynn,  9  I.  R.  E.  186. 

Neither  will  the  non-execution  of  a  power  upon  an  erroneous  im- 
pression stated  in  the  will  that,  by  its   non-execution  one 
person  *  who  is  a  legatee  will  divide  the  fund,  the  subject  [*  428  ] 
of  the  power,  equally  with  another:      Langslow  v.  Langs- 
loiv,  21  Beav.  552. 

No  case  of  election  arises  between  two  appointments  under  lim- 
ited powers.  Thus  in  lie  AjolMs  Trust,  13  \Y.  R.  (V.-C.  W.)  10()2, 
A.  had  power  to  appoint  by  will  a  fund  to  any  one  or  more  of  his 
children.  He  had  under  a  distinct  instrument  power  to  appoint 
another  fund  amongst  his  children,  but  not  exclusively  to  any  one 
of  them,  and  they  were  to  take  equally  in  default  of  appointment. 
He  had  five  children.  By  his  will  ho  exercised  the  first  power  in 
favour  of  S.,  one  of  his  children,  and  the  second  in  favour  of  two 
others  of  his  children.  The  second  power  was  accordingly  badly 
exercised,  and  S.  took  a  share  in  default  of  appointment.  It  was 
held  by  Sir  W.  Page- Wood,  V.  C.  that  no  case  of  election  was  raised 
against  S.     See  also  In  re  Folder's  Trust,  27  Beav.  S62. 

Where  moreover  there  is  an  attempt  to  execute  a  power  in  viola- 
tion of  the  rules  of  law  no  question  of  election  will  arise.  Thus 
where  a  person  makes  an  appointment  void  for  remoteness  to  a  per- 
son not  an  object  of  this  power,  although  by  the  same  instrument 
he  gives  property  of  his  own  to  the  persons  entitled  in  default  of 
appointment,  the  latter  will  not  be  compelled  to  elect,  for  in  such 
case  the  instrument  must  bo  rea  1  as  if  the  invalid  appointment  were 
not  in  it  at  all:  Wollaston  v.  King,  8  L  R.  Eq.  105.  175.  See  In 
re  Warren's  Trusts.  20  Ch.  D.  208,  219,  where  it  was  said  by  Pear- 
son, J.,  in  a  similar  case,  "How  can  there  bo  any  question  of  elec- 
tion? I  mast  read  the  will  as  if  the  invalid  appointment  were  not 
in  it  at  all.  The  ordinary  case  of  election  is  where  a  testator  at- 
tempts to  give  by  will  property  which  belongs  to  some  one  else. 

4S3 


*  429  STREATFIELD  V.  STREATFIELD. 

Such  a  gift  is  not  ex  facie  void.  Id  the  present  case  it  is  the  law 
which  disappoints  the  appointee." 

So  where  a  person  appoints  simply  to  objects  of  the  power,  and 
gives  them  property  of  his  own,  subsequently  directing  them  to 
settle  the  property  so  appointed  on  persons  not  objects  of  the 
power,  such  direction  will  not  raise  a  case  of  election  {King  v.  King, 
15  Ir.  Gh.  Rep.  479,  overruling  Moriarity  v.  Martin,  3  Ir.  Ch.  Rep. 
26).  Secus  where  there  is  a  clause  of  forfeiture  of  the  legacies  on 
non-compliance  with  such  direction  {lb). 

Merely  precatory  words,  requesting  appointees,  objects  of  the 
power,  to  leave  the  fund  appointed  to  others,  not  objects  of  the 
power,  will  not  raise  a  case  of  election.  Blacket  v.  Lamb,  14  Beav. 
482;  Kanipf  v.  Jones,  2  Keen,   756;    Carver  v.  Boivles,  2  Russ.  &, 

My.  301. 

In  order  to  raise  a  case  of  election  by  the  execution  of  a 
[  *  429]  power  there  must  be  an  absolute  and  *  direct  appointment 
to  strangers  to  the  power.  And  it  has  been  recently  de- 
cided that  where  there  is  an  absolute  appointment  by  will  in  favour 
of  a  proper  object  of  the  power,  and  that  appointment  is  followed 
by  attempts  to  modify  the  interest  so  appointed  in  a  manner  which 
the  law  will  not  allow,  the  will  must  be  read  as  if  all  the  passages 
in  which  such  attempts  are  made  were  swept  out  of  it,  not  only  so 
far  as  they  attempt  to  regulate  the  quantum  of  interest  to  be  en- 
joyed by  the  appointee  in  the  settled  property,  but  also  so  far  as 
they  might  otherwise  have  been  relied  upon  as  raising  a  case  of 
election:  Woolridge  v.  Woolridge,  1  Johns.  63.  See,  also,  Church 
ill  v.  Churchill,  5  L.  R.  Eq.  44.  See  also  In  re  Warren's  Trusts, 
26  Ch.  D.  208. 

Compulsory  election  and  privileges  of  persons  compelled  to  elect.  ] — 
Election  may  be  compulsory,  as  where  a  person  is  compelled  to  elect 
by  a  decree  of  the  Court  of  Chancery.  Persons  compelled  to  elect 
are  entitled  previously  to  ascertain  the  relative  value  of  their  own 
property,  and  that  conferred  upon  them,  and  time  will  be  allowed  to 
them  for  that  purpose:  (Newman  v.  Newman,  1  Bro.  C.  C.  186;  Wake 
V.  Wake,  3  Bro.  C.  C.  255;  1  Ves.  jun.  335;  Chalmers  \.  Storil,  2  Y.  & 

B.  222;  Render  V.  Rose,  dY.  Wms.  124,  n.;  Whistler  y.  Whistler,  2 
Ves.  jun.  367,  371;  Codrington  v.  Lindsay,  8  L.  R.  Ch.  App.  593;) 
and,  if  necessary,  accounts  will  be  directed  to  betaken.  Boynton  v. 
Boynton,  1  Bro.  C.  C.  445. 

As  to  the  apportionment  of  debts  upon  difPerent  funds,  see  Cooper 
V.  Cooper,  6  L.  R.  Ch.  App.  15. 

A  persoa  compelled  to  elect  might  formerly  in  general  file  a  bill 
to  have  all  necessary  accounts  taken  (Butricke  v.  Brodhurst,  3  Bro. 

C.  C.  88;  1  Ves.  jun.  171;  Pusey  v.  Desboumne,  3  P.  Wms.  315) ;  but 
a  bill  was  not  always  necessary  for  this  purpose,  as  the  Coui-t  might 
and  mav  still,  when  there  is  a  cause  in  existence  relating  to  the  same 
matter,  direct  such  inquiries  as  may  be  necessary  to  guide  the  per- 

484 


STREATFIELD  V.  STIIEATFIELD.  *  430 

son  put  to  his  election  in  exercising  it:  Douglas  v.  Douglas,  12  L.  K. 
Eq.  017. 

And  an  election  made  under  a  mistaken  impression  will  not  be 
binding,  for  in  all  cases  of  election  the  Court,  while  it  enforces  the 
rule  of  equity,  that  the  party  shall  not  avail  himsdf  of  l)oth  his 
claims,  is  anxious  to  secure  to  him  the  option  of  either,  and  not  to 
hold  him  concluded  by  equivocal  acts,  performed,  perhaps  in  ignor- 
ance of  the  value  of  the  funds:  Puseij  v.  Desbouvrie,  8  P.  Wms.  315; 
Boynton  v.  Boynton,  1  Bro.  C.  C.  445;  Wake  v.  Wake,  3  Bro.  C.  C. 
255;  Kidney  y.  Coussmaker,  12  Ves.  130;  Dillon  v.  Parker,  1  Swanst. 
381,  and  note. 

A  person  who  does  not  elect  *  within  the  time  limited,   [  *  430] 
will  be  considered  as  having  elected  to  take  against  the  in- 
strument i)utting  him  to  his  election.      See  the  decree  in  Streatfield 
V.  Streatfield,  1  Swanst.  447. 

Although  before  an  heir  can  be  put  to  his  election  he  is  entitled 
to  know  everything  which  concerns  the  situation  and  the  value  of  the 
property  in  reference  to  which  he  may  be  required  to  make  his  elec- 
tion, there  is  no  authority  for  the  proposition  that  where  an  heir  has 
chosen  deliberately  to  confirm  a  devise  of  lands,  which,  without  his 
confirmation,  would  be  invalid,  there  must  be,  in  order  to  enable  the 
Court  to  hold  that  those  claiming  under  him  are  bound  by  his  con- 
firmation, some  distinct  evidence  of  his  knowledge  of  his  rights: 
Deivar  v.  Maitland,  2  L.  Jx.  Eq.  838. 

Voluntary  election  and  ichat  will  he  considered  as  amounting  to  vol- 
untary election.] — Election  is  either  exj^ress  (about  which  it  is  un- 
necessary to  say  anything)  or  implied.  And  here  considerable  dif- 
ficulty often  arises  in  deciding  what  acts  of  acceptance  or  acquies- 
cence amount  to  an  implied  election;  and  this  question,  it  seems, 
must  be  determined  more  upon  the  circumstances  cf  each  particular 
case,  than  upon  any  general  principle. 

[A  silent  acquiescence  in  the  changed  condition  of  things,  upon 
the  faith  of  which  other  parties  have  acted  and  acquired  rights  which 
it  would  be  inequitable  to  disturb,  will  amount  to  an  election:  Clay 
V.  Hart,  7  Dana,  1;  Fulton  v.  Moore,  1  Casey,  408;  Caston?;.  Caston, 
2  Rich.  Eq.  1;  Stark  v.  Hunton,  Saxt.  Ch.  *21G.] 

There  is  generally  an  inquiry  directed  as  to  whom  the  premises 
(belonging  to  another),  in  the  testator's  will  mentioned,  belonged 
to  at  his  death,  and  if  they  belonged  to  A.  (a  person  to  whom  he  had 
given  by  will  benefits),  whether  A.  had  elected  in  his  lifetime  to  take 
under  the  testator's  will:  Peck  v.  Peck,  2  Seton  on  Decrees,  934,  4th 
ed. 

On  a  question  of  election  by  a  party  bound  fo  elect  between  two 
properties,  it  is  necessary  to  inquire  into  the  circumstances  of  the 
property  against  which  the  election  is  supposed  to  have  been  made; 
for  if  a  party  so  situated,  not  being  called  on  to  elect,  continues  in  the 
receipt  of  the  rents  and  profits  of  both  properties,  such  receipt  can- 

4S5 


*  431  STREATFIELD  V.   STREATFIELD. 

Bot  be  construed  into  an  election  to  take  the  one  and  reject  the  other; 
and,  in  like  jiianner,  if  one  of  the  properties  does  not  yield  rent  to 
be  received,  and  the  party  liable  to  elect  deals  with  it  as  his  own, — 
as,  for  instance,  by  mortgaging  it  (particularly  if  this  be  done  with 
the  knowledge  and  concurrence  of  the  party  entitled  to  call  for  an 
election), — such  dealing  will  be  unavailable  to  prove  an  actual  elec- 
tion ns  against  the  receipt  of  the  rent  of  the  other  property:  Pad- 
bury  \.  Clark,  2  Mac.  &  G.  298;  and  see  Morgan  \.  Morgan,  4Ir.  Ch. 
Kep.  C06,  G14.  As  we  have  before  seen,  any  acts,  to  be  binding  upon 
a  person,  must  be  done  with  a  knowledge  of  his  rights.  They  must 
also  be  done  with  the  knowledge  of  the  right  to  elect: 
[  *  431  ]  {Briscoe  v.  Briscoe,  7  Ir.  ^-Eq.  R.  VI?,;  1  Jo.  &  L.  334;  Sweet- 
man  V.  Sweetman,  2  I.  R.  Eq.  141,)  and  with  the  intention  of 
electing:  Strafford  v.  Powell,  1  Ball  &  B.  1;  Dillon  v.  Parker,  1 
SwanstTsSO,  38  /;  Edicards  v.  Morgan,  M'Clell.  541;  13  Price,  782;  1 
Bli.  N.  S.  401;  Worthington  \.  Wiginton,  20  Beav.  67;  Wintour  v. 
Clifton,  21  Beav.  447,  468;  8  De  G.  Mac.  &  G.  641 ;  Campbell  v.  J?i- 
gilbij,  21  Beav.  582;   }VilsonY.  Thornbiirjj,  10  L.  R.  Ch.  App.  239. 

It  is  difficult  to  lay  down  any  rule  as  to  what  length  of  time, 
after  acts  done  by  which  election  is  usually  implied,  will  be  binding 
upon  a  party,  and  prevent  him  from  setting  up  the  plea  of  igr  orance 
of  his  rights.  In  Wake  v.  Woke,  1  Ves.  jun.  335,  it  was  held  that 
three  years'  receipt  of  a  legacy  and  annuity,  under  a  will  by  a  widow 
in  ignorance  of  her  rights  did  not  preclude  her  from  making  her 
election;  in  Reynard  v.  Spence,  4  Beav.  103,  where  a  widow  had  re- 
ceived an  annuity  for  live  years  it  was  held,  phe  had  not  elected. 
See  also  Bidricke  v.  Brodhurst,  3  Bro.  C.  C.  90;  S.  C,  1  Ves.  jun. 
172;  Dillon  v.  Parker,  1  Swanst.  386;  Fytche  v.  Fytche,  7  L.  R.  Eq. 
494;  and  in  Sopivith  v.  Maugham,  30  Beav.  235,  where  a  widow  had 
for  sixteen  years  enjoyed  a  provision  under  a  will  in  ignorance  of 
her  right  to  dower,  in  express  satisfaction  of  which  the  provision 
was  made  for  her,  she  was  held  not  to  have  elected. 

But  a  person  may  by  his  acts  suffer  specific  enjoyment  by  others 
until  it  becomes  inequitable  to  disturb  it:  Tibbitts  v.  Tibbiits,  19 
Ves.  663;  Deu-ar\.  Maitland,  2  L.  R.  Eq.  834. 

A  sale  of  his  own  property,  devised  by  the  testator  to  others,  will 
be  considered  an  election  to  take  against  the  will  by  a  person  taking 
a  beneficial  interest  under  the  will:  Rogers  v.  Jones,  3  Ch.  D.  688. 

Acts  of  implied  election  which  will  bind  a  party  will  also  bind 
his  representatives:  (Earl  of  Northumberland  v.  Earl  of  Aylesford, 
Amb.  540,  657;  Dewar  v.  Maitland,  2  L.  R.  Eq.  834.  See  also  2 
Ves.  525;  Strafford  v.  Poivell,  1  Ball.  &  B.  1;  Ardesoifex.  Bennett, 
2  Dick.  463;)  and  some  acts,  which  it  appears  would  not  be  binding 
upon  hira  if  insisted  upon  in  his  lifetime,  will  bind  his  representa- 
tives "  iipon  that  principle  only,"  as  observed  by  Lord  Hardtvicke, 
"not  to  disturb  things  long  acquiesced  in  in  families,  upon  the  foot 
of  rights  which  those,  in  whose  place  they  stand,  never  called  in 
question:  Tomkyns  v.  Ladbroke,  2  Ves.  593;  Worthington  v.  }Vig- 
486 


STREATPIELD  t)  STREATFIELD.  *  432 

ington.   20  Boav.   67;    Sopivith  v.  Maugham,   30  Boa  v.    235,   239; 
Whitley  v.  Whitley,  31  Boa  v.  173. 

But  if  the  ropresei^,tativos  of  those  who  were  bound  to  elect  and 
■who  have  accepted  benefits  under  the  instrument  imposing 
the  obligation  of  election,  but  *   without  ex[)licitly   elect-  [  *  432  J 
incr,  can  off'U'  comi)ensatioii,  and  place  the  other   l)arty  in 
the  same  situation  as  if  those  benefits  had  not  been   accepted,  they 
may  renounce  them  and  determine  for  themselves:  Dillon  v.  Parker, 

1  Swanst.  385;  Moore  v,  Butler,  2  S.  &  L.   208;   Tyfison  v.  Benyon, 

2  Bro.  C.  C.  5. 

A  person  entitled  in  remainder  to  an  interest  in  property  is  not 
bound  by  the  election  of  a  party  having  a  prior  interest:  Ward  v. 
BaugJi,  4  Ves.  043;  Longv.  Long,  5  Ves.  425;  Hutchison  v.  Skelton, 
2  Macq.  H.  L.  Cas.  492,  495. 

Every  member  of  a  class,  moreover,  as  for  instance,  next  of  kin, 
has  a  distinct  right  to  elect,  and  will  not  be  bound  by  the  election 
of  the  majority  nor  of  the  administrator:  Fytche  v.  Fytche,  7  L.  R. 
Eq.  494. 

Where  an  election  was  doubtful  it  has  been  sent  to  a  jury  to  de- 
termine that  fact:  Roundell  v.  Currer,  2  Bro.  C.  C.  73;  1  Swanst. 
383  n. 

Where  upon  an  inquiry  it  has  been  found  that  a  deceased  bene- 
ficiary under  the  will  of  a  testator  has  elected  to  take  under  his  will, 
there"  will  be  a  declaration  made  by  the  Court,  that  the  premises 
belonging  to  such  beneficiary,  in  the  testator's  will  mentioned, 
passed  in  equity  to  the  devisee  thereof,  and  that  the  heir-at-law  or 
devisee  of  the  beneficiary  is  a  trustee  thereof  for  the  devisee  under 
the  will:  see  Peck  v.  Peck,  2  Seton  on  Decrees,  934,  4th  ed. 

So  where  a  defendant  has  elected  to  take  estates  appointed  by  the 
will  of  the  testator,  who  has  bequeathed  to  others  the  defendant's 
share  of  funds  in  settlement,  the  defendant  will  be  directed  to  exe- 
cute a  proper  release  of  his  share  and  interest  in  the  settlement  to 
the  trustees  thereof,  such  release  to  be  settled  by  the  judge:  Fleming 
V.  Buchanan,  2  Seton  on  Decrees,  935,  4th  ed.  [If  a  person  does 
not  have  a  full  knowledge  of  his  rights,  and  of  all  the  attendant  cir- 
cumstances he  cannot  make  a  valid  election:  Dickinson  y.  Dickin- 
son, 11  P.  F.  Smith,  405;  Anderson's  Appeal,  12  Casey,  476.] 

Election  in  the  case  of  parties  under  disabilities. — Where  an  in- 
fant is  bound  to  elect,  in  some  instances,  as  in  Streatfield  v.  Streat- 
field,  the  period  of  election  is  deferred  until  after  he  comes  of  age. 
See  BougMon  v.  Boughton,  2  Ves.  12;  Bor\.  Bor,  3  Bro.  P.  C.  173, 
Toml.  Ed.  In  other  cases  there  has  lieen  a  reference  to  inquire 
what  would  beioosh  beneficial  to  the  infant:  Chetwynd  v.  Fleetwood, 
1  Bro.  P.  C  300,  Toml.  Ed. ;  2  S.  &  L.  266;  Goodwyn  v.  Goodwyn, 
1  Ves.  228;  Biglandv.  Hnddlesfone,  3  Bro.  C.  C.  285,  n.;  Grettonw 
Haward,  1  Swanst.  413;  Ebrington  v.  Ebringtou,  5  Madd.  117;  Ash- 
burnhain  v.  Ashburnharn,  13  *Jur.   1111;  Prole   v.  Soady,8  W.  R. 

487 


*  433  STREATFIELD  V.   STREATFIELD. 

(V.-C.  S.)  131;  Brown  \.  Brown,  2  Lt.  R.  Eq.  481;  and  see  Griggs 
V.  Gibson,  1  L.  R.  Eq.  685;  Bennett  v.  Houldsworth,  6  Ch.  P.  G7l; 
2  Seton,  933,  936,  4th  ed.  In  others  where  the  Court  had  suffi- 
cient materials  before  it  an  order  has  been  made  for  an 
[  *433]  infant  to  *  elect  without  a  reference  to  Chambers:  Blunt 
V.  Lack,  26  L.  J.  Ch.  148;  Lamb  v.  Lamb,  5  W.  R.  (V.-C. 
K.)  772;  2  Seton,  933,  936,  4th  ed. 

The  practice  as  to  election  by  married  women  in  the  Court  of 
Chancery  also  varies:  see  Mr.  Swanston's  note  to  Gretton  v.  Ha- 
rvard, 1  Swanst.  413;  but  in  general  there  will  be  an  inquiry  what 
is  most  beneficial  for  them,  and  they  will  be  required  to  elect  within 
a  limited  time.  See  Pulteney  v.  Darlington,  7  Bro.  P.  C.  546,  547, 
Toml.  ed. ;  2  Ves.  jun.  560;  3  Ves.  385;  Vane  v.  Lord  Dungannon, 
2  S.  &  L.  133;  Davis  v.  Page,  9  Ves.  350;  Cooper  v.  Cooper,  7  L. 
R.  Ho.  Lo.  53,  67,  79.  In  Wilson  v.  Lord  John  Townsend,  2  Ves. 
jun.  693,  Lord  Rosslyn,  although  he  admitted  that  to  be  the  general 
practice,  dismissed  the  bill  without  a  reference,  as  the  married 
women  "had  manifestly  a  much  better  interest  than  the  testatrix 
intended."  See  also  Porsons  v.  Dunne,  2  Ves.  60,  Belt's  Suppl. 
276. 

A  married  woman  may  elect  so  as  to  affect  her  interest  in  real 
property;  and  where  she  has  once  so  elected,  though  without  deed 
acknowledged,  the  Court  can  order  a  conveyance  accordingly;  the 
ground  of  such  order  being  that  no  married  woman  shall  avail  her- 
self of  a  fraud.  Having  elected,  she  is  bound,  and  the  transaction 
will  be  enforced  against  the  heir:  Ardesoifew.  Bennet,  2  Dick.  463; 
Barroiv  v.  Barrow,  4  K.  &  J.  409;  Willoughby  v.  Middleton,  2  J.  & 
H.  344;  Sisson  v.  Giles,  11  W.  R.  (V.-C.  S.)  558;  Satill  v.  Savill, 
2  Coll.  721;  Anderson  v.  Abbott,  23  Beav.  457;  Smith  v.  Lucas,  18 
Ch.  D.  531;  Wilder  v.  Pigott,  22  Ch.  D.  263;  In  re  Quead's  Trusts, 
W.  N.  1885,  May  3,  99;  sed  vide  Campbell  v.  Ingilby,  21  Beav.  567, 
which  may  be  considered  as  contrary  to  the  current  of  authorities 
on  this  point.  Lord  Cottenhani,  however,  was  of  opinion  in  the 
case  of  Frank  v.  Frank,  3  My.  &  Cr.  171,  that  a  feme  covert  was 
not  competent  during  the  coverture  t®  elect  between  a  jointure 
made  to  her  after  her  marriage  and  her  dower  at  common  law,  be- 
cause there  is  an  express  provision  in  the  Statute  of  Uses  (27  Hen. 
8,  c.  10),  that  her  election  shall  be  made  at  the  time  when  the 
right  is  claimed,  that  is  to  say,  after  her  husband's  death :  sec.  10. 
See  also  Anon.,  Dyer,  358,  b. 

Ordinarily  a  married  woman  cannot  elect  to  relinquish  a  rever- 
sionary chose  in  action:  Robiyison  v.  WheeluTight,  6  De  G.  Mac.  & 
G.  535,  546;  Whittle  v.  Henning,  2  Ph.  731;  Williams  v.  Mayne,  1 
I.  R.  Eq.  519,  overruling  Wall  v.  Wall,  15  Sim.  513.  But  see  now 
20  &  21  Vict.  c.  57  (Malins'  Act),  fully  noticed  in  the  note  to  Ryall 
v.  Rowles,  vol.  ii.  post. 

It  would  seem,  however,  that  npon  principle  a  married  woman, 
in  the  case  of  a  reversionary  interest  in  personalty,  equally  as  in 
488 


BTREATFIELD  V.  STREATFIELD.  *  435 

the  ease  of  real  property  (at  *  any  rate  where  under  [  *  434  ] 
Malins'  Act  (20  &  21  Vict.  c.  57),  she  has  power  to  dispose, 
in  manner  therein  mentioned,  of  such  revf^rs^ionary  interest)  would 
not  be  allowed  to  avail  herself  of  a  fraud,  and  might  therefore  be 
held  to  have  made  her  election  even  when  such  reversionary  interest 
iti  personalty  was  thereby  affected:  Wilder  v.  Pigott,  22  Ch.  D.  203; 
see,  however,  Williams  v.  Mayne,  1  I.  R.  E(|.  519. 

And  it  seems  that  a  restraint  upon  anticipation  will  prevent  a 
case  of  election  from  arising  because  the  Court  cannot  give  com- 
pensation oiit  of  the  life  interest  of  a  married  woman  affected  by 
it,  to  persons  who  would  have  been  disappointed  by  her  election: 
Smith  V.  Lucas,  18  Ch.  D.  531;  In  re  Wheatley,  Smith  v.  Spence,  27 
Ch.  D.  GOG;  sed  vide  In  re  Vardon's  Trusts,  W.  N.  29th  Nov.  1884, 
p.  21 G. 

If  a  married  woman  becomes  of  unsound  mind  before  electing, 
though  not  found  so  by  inquisition,  the  Court  has  jurisdiction  to 
make  an  election  for  her  if  it  appears  to  be  for  her  benefit:  Jones 
v.  Lloijd,  IS  L.  R.  Eq.  265;   Wilder  v.  Pigott,  22  Ch.  D.  263. 

Parties  disai)pointed  by  the  election  of  the  heir  to  take  against  a 
will  by  requiring  the  executors  to  complete  a  contract  for  an  estate 
entered  into  by  the  testator,  have  no  lien  on  the  estate  for  the  amount 
of  the  benefits  the  heir  has  taken  under  the  wall,  but  after  his  death 
they  are  entitled  to  prove  against  his  estate  for  the  amount  which 
he  has  so  received:   Greeincood  v.  Penny,  12  Beav.  402. 

Death  of  person  to  elect  without  electing.] — If  a  person  under  an 
obligation  to  elect  dies  without  having  done  so,  and  property  which 
he  takes  beneficially  under  the  will,  and  his  own  property  bequeath- 
ed to  strangers,  go  the  same  way;  if,  for  instance,  both  be  personal 
property  vesting  either  in  his  legatees,  or  in  the  case  of  the  intestacy 
of  such  person,  in  his  next  of  kin;  such  persons  would  be  entitled 
to  elect:   Fytche  v.  Fytche,  7  L.  R.  Eq.  490. 

And  each  of  the  next  of  kin  has  a  separate  right  of  election,  so 
that  neither  the  election  of  the  majority  nor  that  of  the  heir  or  ad- 
ministrator binds  the  others.     lb. 

.  Those  of  the  next  of  kin  who  elect  to  take  under  the  will,  will 
be  entitled  to  all  the  beneficial  interest  by  the  will  confeiTed  on  the 
intestate.     lb. 

But  any  of  the  next  of  kin  electing  to  take  against  the  will  must 
not  only  give  up  all  the  benefits  under  it,  but  is  bound  to  bring  into 
account  the  interest  of  the  person  through  whom  he  claims.  See 
Fytche  v.  Fytche,  7  L.  R.  Eq.  494.  There  a  testator  made  various 
bequests  in  favour  of  his  wife,  including  some  property 
*  to  which  she  was  entitled  in  her  own  right,  and  he  also  [  *435] 
gave  her  an  annuity  of  300/.,  charged  on  specified  real  es- 
tate, in  lieu  of  dower  and  freebench.  The  wife  survived  her  hus- 
band, and  during  her  life  received  the  benefits  given  her  by  the 
will,  but  never  elected  whether  to  take  under  or  against  the'  will, 

489 


*  436  STREATFIELD  V.   STREATFIELD. 

and  died  intestate,  leaving  four  nest  of  kin,  three  of  whom  elected 
to  take  nnder  the  will,  while  the  fourth,  who  was  her  administrator, 
elected  to  take  against  it.  It  was  held  by  Maims,  V.-C,  that  each 
of  the  next  of  kin  had  a  separate  right  of  election;  that  neither 
the  election  of  the  majority,  nor  one  being  also  heir  and  adminis- 
trator, bound  the  others;  that  the  next  of  kin  electing  to  take 
ao-aiast  the  will,  was,  as  between  himself  and  the  others  taking  under 
the  will,  bound  to  bring  into  account  every  benefit  given  by  the 
will,  and  therefore  everything  ought  to  be  brought  into  account, 
which  the  widow  took  under  the  will,  including  the  300Z.  a  year. 
On  the  other  hand  credit  ought  to  be  given  to  the  administrator 
electing  to  take  against  the  will  for  one-  fourth  of  the  dower  to 
which  the  widow  would  have  been  entitled,  and  in  lieu  of  which  the 
300Z.  annuity  was  bequeathed  to  her.  (See  also  Rodgers  v.  Jones, 
3  Ch.  D.  688,  ante,  p.  407.) 

Where  a  person  dies  without  having  made  any  election  between  ■ 
his  own  property  (personalty  bequeathed  to  legatees),  and  real 
estate  which  he  took  under  the  will,  and  which  go  different  ways, 
viz.,  the  former  to  the  executors  and  the  latter  to  his  heir-at-law  or 
devisee,  there  can  be  no  election  on  the  part  either  of  the  executor 
on  the  one  hand,  or  the  heir-at-law  on  the  other  hand;  each  will 
retain  the  property  to  which  he  is  legally  entitled;  but  the  party 
taking  the  testator's  own  property,  i.  e.,  in  the  case  supposed,  the 
realty,  will  be  under  an  obligation  to  make  good  what  is  sufficient 
to  satisfy  the  disappointed  legatees,  and  the  amount  suificient  for 
that  purpose  will  be  a  charge  on  the  real  estate:  Pickersgillv.  Rod- 
ger, 5  Ch.  D.  163,  175. 

Legacy  and  succession  deities.] — It  may  be  here  mentioned  that 
under  the  Legacy  Duty  Acts  (36  Geo.  3.  c.  52,  and  45  Geo.  3,  e.  28), 
no  lecracy  duty  is  payable  on  the  value  of  personal  estate  given  up 
by  one  legatee  to  another  person  unc'^er  the  doctrine  of  election;  but 
where  a  testator  devises  his  own  real  estate  to  one  person,  and  be- 
queaths a  sum  of  money  belonging  to  such  person  to  a  third  party, 
legacy  duty  will  be  payable  on  such  sum  as  being  in  effect  payable 
out  of  or  charged  upon  the  testator's  real  estate:  Laurie  \.  Chdton, 
15  Beav.  131. 

It  seems,  however,  that  in  the  former  of  these  cases  succession 
duty  would  be  payable,  by  the  person  to  whom  the  per- 
[  *  436  ]  soual  *  estate  is  given  up,  as  upon  a  succession  derived  by 
him  from  the  testator,  within  the  terms  of  sect.  2  of  the 
Succession  Duty  Act  (16  &  17  Vict.  c.  51);  see  Hanson  on  Probate, 
Legacy,  and  Succession  Duties,  pp.  6,  8,  3rd  ed. ;  and  in  the  latter 
of  these  cases  the  devisee  of  the  real  estate  would,  after  the  legacy 
duty  has  been  paid  upon  the  sum  so  in  effect  charged  upon  the  de- 
vised estate,  be  entitled  to  a  corresponding  deduction  from  the  value 
of  his  succession:  lb.  131. 

.       490 


STREATFIELD  V.  STREATFIELD,  *  436 

[^Doctrine  of  Election  Restated. — The  principal  on  whicli  tho 
docUine  of  election  is  based,  is  that  a  donee  shall  not  be  allowed 
to  approbate  and  reprobate,  and  if  he  approbates  he  shall  do  all 
that  lies  in  his  power  to  confirm  (he  instrument  which  he  appro- 
bates. The  election  may  be  either  express  or  implied.  An  express 
election  is  where  tliere  has  been  a  condition  annexed  to  a  gift,  and 
compliance  with  which  is  distinctly  made  one  of  the  terms  upon 
which  gift  can  alone  bo  enjoyed.  Thus,  if  a  testator  by  his  will 
directs  that  a  gift  be  given  to  A.  if  he  conveys  a  certain  tract  of 
land  to  B.,  which  land  is  the  property  of  A.  Now  A.  must  elect, 
and  if  he  refuses  to  convey  the  land  to  B.,  then  he  forfeits  the  gift 
made  to  him  by  tho  testator.  "Where  there  is  an  express  condition, 
a  non-com[)liance  causes  a  forfeiture.  An  illustration  of  an  implied 
election  is  where  a  testator  gives  money  or  land  to  A.,  and  then  by 
the  same  instrument  gives  something  which  is  A.'s  to  a  third  per- 
son. In  this  case  there  is  an  implied  duty  to  elect,  and  if  A.  re- 
fuses to  make  the  gift  to  tho  third  person  as  directed  by  the  testa- 
tor, he  does  not  forfeit  the  gift  to  him,  but  is  compelled  to  give  up 
so  much  of  it  as  will  amount  to  compensation  for  the  disappoint- 
ment beneliciary.  The  distinction  between  these  two  classes  be- 
comes of  practical  importance  where  the  doctrine  of  election  is  at- 
tempted to  be  applied  to  the  case  of  void  devises.  The  doctrine  of 
election  applies  to  property  of  every  kind,  and  to  interests  of  every 
description,  and  it  does  not  make  any  difference  whether  the  donor 
does  or  does  not  know  that  he  has  no  right  to  dispose  of  the  prop- 
erty in  respect  of  which  the  election  has  been  made.  A  case  which 
is  sometimes  confounded  with  the  doctrine  of  election  is  where  a 
a  testator  makes  two  distinct  gifts  of  his  own  property,  one  beneli- 
cial  and  the  other  onerous,  and  tho  question  is  Avhether  the  donee 
is  entitled  to  elect  to  accept  the  first  and  disclaim  the  second.  The 
general  rule  in  sucli  cases  appears  to  bo  that  the  two  legacies  or 
gifts  are  distinct  and  separate  and  the  beaeiiciary  may  take  one  and 
reject  the  other,  but  this  right  may  be  rebutted  by  anything  in  the 
will  which  sbows  that  the  testator  did  not  intend  this  option  to 
exist.  If  there  is  a  single  and  individual  gift,  that  is  2irivid  facie 
evidence  that  the  gift  should  be  regarded  as  one.  Cases  arising 
under  this  class  are  wholly  distinct  from  the  doctrine  of  election. 

In  order  to  raise  an  election,  the  testator  must  dispose  of  his  own 
property  and  also  effect  to  dispose  of  that  which  is  not  his  own  if 
both  of  these  requisites  do  not  occur;  there  is  no  case  for  an  election, 
it  is  further  necessary  that  the  two-fold  gift  should  be  made  by  the 
same  instrument.  The  party  who  elects,  must  in  order  to  make  a 
valid  election,  have  adequate  information,  in  regard  to  the  value  of 
the  two  pieces  of  property  between  which  he  is  to  choose,  and  the 
Court  will  assist  him  in  determining  their  respective  values.  An 
election  can  only  be  made  by  a  person  who  it  sni  jii7'is  and  a  Court 
of  equity  will  oftentimes  elect  for  the  benefit  of  infants  and  femes 
covert. 

491 


*  437  ALEYN  V.  BELCHIER. 

The  right  of  choice  which  the  donee  has  when  made,  binds  only 
himself  and  does  not  affect  the  interest  of  donees  in  remainder. 

The  doctrine  of  election  does  not  apply  to  creditors,  in  cases 
where  property  is  charged  by  will  with  debts,  because  the  creditors 
can  claim  the  benefit  of  the  charges  and  yet  collect  their  debts  out  of 
the  other  assets.  An  election  may  be  made  by  some  silent  acquies- 
cence, or  some  decisive  act.  A  bare  acquiescence,  without  a  delib- 
erate and  intelligent  choice  made  under  a  full  and  free  knowledge 
of  all  the  circumstances,  and  of  the  party's  rights  will  not  be  deemed 
an  election.  The  doctrine  also  applies  to  the  exercise  of  powers  of 
appointment.] 


[  *  437]  *ALEYN  v.  BELCHIER. 


July  5th,  1758. 

[rEPOETED    1     EDEN,    132.] 

{S.  C.  Sitgd.  on  Pmv.  App.  Amb.  MSS.  Reg.  Lib.  A.  llhl,fol.  432.] 

Feaud  upon  a  Power.] — Power  of  jointuring  executed  in  favour  of 
a  wife,  but  ivith  an  agreement  that  the  wife  should  only  receive  a 
part  as  an  annuity  for  her  oxen  benefit,  and  that  the  residue 
should  be  applied  to  the  payment  of  the  husband's  debts:  held  a 
fraud  upon  the  power,  and  the  execution  set  aside,  except  so  far 
as  related  to  the  annuity ;  the  bill  containing  a  submission  to  pay 
it,  and  only  seeking  relief  against  the  other  objects  of  the  appoint- 
ment. 

The  Rev.  Thomas  Aleyn  being  seised  of  a  real  estate  in  Essex,  of 
the  yearly  value  of  540/.,  subject  to  a  mortgage  for  a  term  of  500 
years  to  Sir  Charles  Palmer  for  500 Z.,  and  having  a  nephew,  Ed- 
mund Aleyn,  and  two  brothers,  the  plaintiff,  Giles  Aleyn,  and  Wil- 
liam, who  was  a  defendant,  by  his  will,  bearing  date  the  28th  of 
May,  1740,  devised  the  same  to  Eyre  and  Bragg,  in  trust  by  sale  or 
mortgage  to  raise  money,  and  pay  his  debts  and  legacies,  and  to 
permit  his  wife  to  receive  the  rents  and  prohts  of  the  residue  for 
492 


ALEYX  V.  BELCIIIER,  *  438 

her  life,  and  after  her  death  in  trust  to  convey  to  his  nephew  Ed- 
mund for  life,  with  remainder  to  his  first  and  other  sons  in  tail 
male,  with  proper  limitations  to  support  contingent  remainders, 
with  a  poiver  to  his  neplieiv  to  make  a  jointure  on  any  icoman  he 
should  then  after  marry,  for  her  life,  in  bar  of  dower,  with  powers  to 
provide  for  younger  children,  and  to  make  leases,  with  remainder 
to  the  testator's  brother  Giles  for  life;  remainder  to  his  first  and 
other  sons  in  tail  male;  remainder  to  his  brother  William  for  life; 
remainder  to  his  first  and  other  sons  in  tail  male;  remain- 
der to  his  *owa  right  heirs;  he  gave  his  brother,  the  plain-  [*  438  ] 
tiff,  an  annuity  of  80^  a  year  for  his  life,  to  be  paid  out  of 
his  estate,  to  be  increased  to  50Z.  a  year  in  case  his  nephew  should 
survive  his,  the  testator's  wife. 

A  bill  was  filed  soon  after  the  testator's  death  by  the  widow,  and 
on  the  14tb  of  February,  1749,  a  decree  made  to  establish  the  will, 
and  for  payment  of  debts  and  legacies  by  mortgage  or  sale  in  the 
usual  way.  The  master  reported,  there  was  duo  for  debts  and  lega- 
cies 1510^.  Is.  lOd.,  which  he  approved  to  be  raised  by  mortgage. 
The  widow  died  in  April,  1750,  and  Edmund  became  entitled  to  the 
possession  of  the  estate.  The  defendant,  "William  Belchier,  having 
advanced  money  to  pay  off  the  incumbrances,  a  mortgage,  bearing 
date  the  26th  and  27th  of  June,  1750,  was  made  of  the  estate  to  him 
in  fee,  and  the  term  for  years  was  assigned  to  John  Belchier  in  trust 
for  W.  Belchier. 

Edmund  was  very  extravagant,  and  became  indebted  to  William 
Belchier  in  the  sum  of  1760Z. 

On  the  4th  of  June,  1750,  Edmund  married  the  defendant  Jane, 
who  was  a  low  woman  without  fortune,  and  no  provision  for  her  was 
either  made  or  agreed  to  be  made;  but,  soon  after  the  marriage, 
by  articles  of  agreement,  bearing  date  the  1st  of  August,  1750,  and 
made  between  Edmund  Aleyn  and  his  wife  of  the  one  part,  and 
William  Belchier  of  the  other,  reciting  the  will  of  Thomas  Aleyn, 
giving  Edmund  a  power  of  jointuring,  and  that  ho  and  Jane  were 
lately  married,  and  that  he  was  indebted  to  William  Belchier  in  the 
sum  of  1760Z.  besides  the  mortgage,  Edmund  Aleyn,  in  satisfaction 
and  discharge  of  the  said  sum  of  1760?.,  and  in  consideration  of  the 
several  annuities  and  money  thereinafter  agreed  to  be  paid,  cove- 
nanted within  six  months  to  procure  an  effectual  conveyance  and 
settlement  to  be  made  by  the  trustees  in  Thomas  Aleyn's  will,  and 
immediately  after  such  settlement  should  be  made,  to  appoint  tb*» 

493 


*  440  ALEYN  V.  BELCUIER. 

whole  estate  to  his  wife  for  her  life,  in  case  she  should  survive  him, 
for  her  jointure;  and  that  he  and  his  wife,  as  soon  as  they  should 
become  respectively  seised  of  the  legal  estate  of  freehold, 
[  *  439  ]  *would,  by  fine  and  conveyances,  convey  and  assure  all  the 
said  premises  by  the  said  will  devised  and  intended  to  be 
settled,  unto  and  to  the  use  of  William  Beichier,  his  heirs  and  as- 
signs, during  the  lives  of  Edmund  Aleyn  and  Jane  his  wife,  and  the 
longer  liver  of  them;  and  in  consideration  thereof,  William  Beichier 
covenanted  that,  in  case  the  said  settlement  should  be  perfected, 
whereby  the  estates  should  become  well  vested  in  him  and  his  heirs, 
for  the  lives  of  Edmund  and  Jane  his  wife,  and  the  longer  liver  of 
them,  to  pay  the  several  annuities  after  mentioned,  namely:  to  Jane 
Aleyn,  during  the  joint  lives  of  her  and  Edmund  her  husband,  60Z. 
a  year,  clear  of  all  deductions,  for  her  separate  use;  to  Edmuud 
Aleyn,  for  his  life,  in  case  he  should  survive  Jane  his  wife,  GOZ.  a 
year,  clear  of  all  deductions;  and  to  Jane,  in  case  she  shoul^  sur- 
vive Edmund  her  husband,  for  her  life,  lOOZ.  a  year,  clear  of  all  de- 
ductions; and  to  pay  to  John  Miles,  son  of  Jane  by  a  former  hus- 
band, 105Z.  at  the  age  of  twenty-one  years;  and  also  to  pay  Jane 
5Z.  yearly  towards  his  maintenance  and  education,  till  the  105Z. 
should  become  payable. 

The  estate  was  conveyed  by  lease  and  release  of  Gth  and  7th  of 
August,  1750,  to  the  uses  of  Thomas  Aleyn's  will  pursuant  to  the 
decree  ;  and  by  deed,  dated  8th  August,  1750,  reciting  the  convey- 
ance and  power  to  jointure,  Edmund  Aleyn,  in  consideration  of  the 
marriage,  and  in  order  to  make  a  provision  for  Jane,  his  wife,  ap- 
pointed the  whole  estate  to  Jane,  his  wife,  for  a  jointure,  subject  to 
the  payment  of  the  annuities  given  by  the  will  of  Thomas  Aleyn, 
and  of  the  mortgage  of  1516Z.  Is.  lOcZ.  and  interest. 

On  the  lOth  of  August,  1750,  Edmund  Aleyn  and  Jane,  his  wife, 
executed  a  deed,  by  which  Edmund  covenanted  with  George  Town- 
send,  that  he  and  his  wife  would  levy  a  fine  of  the  premises  to  Town- 
send  and  his  heirs,  for  and  during  the  lives  of  Edmund  and  his 
wife,  and  the  longer  liver  of  them,  in  trust  for  William  Beichier  and 

his  heirs,  which  was  levied  accordingly. 
[  *  440  ]       William  Beichier  took  possession  of  the  estate,  and  *  re- 
ceived the  rents  and  profits,  and  paid  the  plaintiff,  during 
Edmund's  life,  two  sums  of  25Z.  and  21Z.  5s.,  in  part  of  the  annuity 
he  was  entitled  to  under  Thomas  Aleyn's  will. 

Edmund  died  in  June  1755. 
494 


ALEYN  V.  15ELCJI1EK.  *  441 

On  2Gth  November,  175G,  tho  plaintiff  liled  tho  present  bill  to 
redeem  the  estate,  on  payment  of  1510^.  l.s-.  lOd,  the  mortgage  money 
borrowed  nndor  the  decree,  and  to  bo  let  into  the  possession  of  the 
estate;  for  an  account  of  the  rents  and  profits  from  the  death  of 
Edmund,  submitting  to  pay  Jane  lOOZ.  a  year  for  her  life,  and  to  have 
the  deeds  and  writings  of  the  estate  delivered  up. 

Jane  Aleyn  and  Willian  Belchier  admitted,  in  their  several 
answers,  the  facts  as  before  stated.  Jane  Aleyn  said,  that  the  settle- 
ment was  intended  to  make  a  reasonable  provision  for  her,  and  to 
save  Edmund  from  ruin;  and  that  if  Edmund  had  not  been  in  debt 
at  the  time  of  their  marriage,  he  would  have  settled  the  whole  estate 
on  her  for  her  jointure.  William  Belchier  said,  that  the  considera- 
tion of  the  settlement  and  conveyance  was  truly  and  bona  fide  ad- 
vanced, part  before  the  execution  of  the  settlement,  and  the  remain- 
der at  or  about  the  time  of  the  execution  of  the  settlement  and  con- 
veyance to  Townsend  ;  and  they  both  admitted  that  Edmund  was, 
at  the  time  of  the  settlement,  in  distressed  circumstances,  and  in 
want  of  money. 

Mr.  Pe?To^  and  Mr.  Ambler,  for  the  plaintiff: — This  is  an  improper 
execution  of  the  power,  which  was  to  bar  dower,  by  giving  a  jointure; 
but  even  supposing  it  well  executed,  the  fraud  will  vitiate  it.  The 
appointment  and  conveyance  were  a  deceit  upon  tho  testator,  and  a 
fraud  upon  the  remainder-man.  The  power  given  to  the  nephew, 
who  was  only  tenant  for  life,  was  to  make  a  fair  jointure,  to  encour- 
age him  to  marry,  not  to  pay  his  debts.  The  remainder-man  was 
only  to  be  kept  out  of  the  estate  in.  case  a  fair  and  honest  jointure 
were  made.  It  must  not  be  colourable,  and  for  other  purposes. 
This  was  an  artful  contrivance  of  Belchier  and  the  defendant  Jane: 
a  low,  mean  woman,  of  no  fortune.  There  is  no  settlement, 
nor  agreement  for  one,  at  the  time  of  the  marriage,  nor 
*  till  Belchier  put  it  into  Edmund's  head,  with  a  view  to  [  *  441  ] 
secure  his  own  debt  by  taking  an  absolute  interest  in  the 
estate  for  two  lives,  instead  of  a  mortgage  for  Edmund's  life  only. 
It  is  at  best  an  unreasonable  bargain.  The  articles  of  the  1st 
August  discover  tho  whole  scheme.  Upon  the  face  of  them  it  appears 
it  was  not  the  intention  to  jointure,  but  to  pay  debts.  The  only 
jointure  averred  is  lOOZ  a  year;  Edmund  is  stripped  of  everything 
during  the  joint  lives  of  himself  and  his  wife;  only  GO?,  a-year  to  be 
paid  during  their  joint  lives,  and  that  to  the  sepirato  use  of  the 
wife.     Suppose  a  power  to  make  a  jointure  of  so  much  for  every 

495 


*  442  ALEYX  V.  BELCIIIER. 

thousand  pounds  fortune:  it  has  been  repeatedly  held,  that  if  the 
husband  or  others  advance  a  sum  of  money,  colourably  to  authorise 
the  husband  to  settle  largely,  a  Court  of  Equity  will  set  aside  all 
above  the  proportion  of  the  real  value  of  the  fortune  (/).  So,  if 
a  father,  having  a  power  to  appoint  amongst  his  children,  bargains 
with  one  for  a  share,  equity  will  set  it  aside.  Though  it  may  be 
honest  in  Edmund  to  pay  his  debts,  it  must  be  done  with  his  own 
money;  this  is  a  method  of  doing  it  with  other  persons'  money,  con- 
trary to  the  intention  of  the  testator.  Even  admitting  the  estate 
had  been  fairly  and  bona  fide  appointed  as  a  jointure,  and  the  wife 
had  afterwards  parted  with  her  jointure,  or  part  of  it  to  pay  her 
husband's  debts,  it  would  have  been  good  to  bind  the  remainder- 
man; yet  in  this  case  the  whole  is  one  transaction,  a  collusion  be- 
tween the  husband  and  wife  and  Belchier.  The  case  of  Lane  v. 
Page,  determined  by  Lord  Hardwicke,  is  precisely  in  point. 

The  Attorney-General,  Sir  Charles  Pratt,  and  the  Solicitor-Gen- 
eral, the  Hon.  Charles  ForA;e,  f or  the  defendant  Belchier;  Clark,  ior 
the  jointress; — 

The  first  question  is,  as  to  the  extent  of  the  power  given  by  the 
will.  The  objection  that  the  power  is  only  to  bar  dower,  and  con- 
sequently can  only  comprehend  jointures  made  before  marriage,  is 
too  extensive,  as  it  will  comprehend  every  jointure,  though  made 
bona  fide.  The  devise  is  to  a  nephew,  having  no  estate  of  his 
own,  for  life,  without  impeachment  of  waste;  he  had  no 
[  *  442]  estate  to  *  which  dower  could  attach,  which  shows  that  the 
words  were  put  in  by  the  scrivener  currente  calamo. 

As  to  the  execution,  the  power  was  substantially  executed;  the 
husband  and  wife  agreed  to  sell  their  interest  to  Belchier.  If  an 
appointment  had  been  made  of  the  whole  estate,  and  the  wife  had 
afterwards  joined  with  the  husband  and  sold  her  interest,  it  would 
have  been  good  if  only  a  day  had  intervened.  This  is  the  same 
thing.  Suppose  the  wife  had  made  a  stand  after  the  power  was  exe- 
cuted, the  Court  would  not  have  compelled  her  to  levy  a  fine.  It 
was  in  her  power  to  do  it  or  not.  In  the  case  put,  of  a  father  ap- 
pointing to  a  child,  making  himself  a  partaker,  the  appointment 
would  only  be  avoided  as  against  other  children,  not  against  a  re- 
mainder-man. 

The  Lord  Keeper  Henley  {g). — The  question  is  whether  Edmund 

(/)   Lane  r.  Page,  Amb.  233;  Lord  Tyrconnel  r.  Duke  of  Ancaster,  Amb.  237. 
((j)  Afterwards  Lord  Chancellor  and  Earl  of  Northington. 

496 


ALEYN  V.  BELCIIILK.  *  443 

Aleyn  has  properly  oxecntotl  tho  powor  as  a  jointuro,  and  has  prop- 
erly coQveyeJ  to  the  defendant,  Belchier,  or  whether  the  transaction 
is  void  in  toto,  or  in  part.  I  am  inclined  to  think  the  power  was  Dot 
well  executed  in  point  of  law  (h).  It  ought  to  have  been  before  mar- 
riage. The  power  is  given  under  restrictions.  It  must  be  a  jointure 
in  bar  of  dower,  which  can  only  be  before  marriage.  Dower  is  not 
barrable  by  a  jointure  after  marriage.  But,  I  build  ray  opinion  iipon 
the  next  question. 

The  whole  transaction  is  an  agreement  between  the  husband  and 
wife.  No  point  is  better  established  than  that  a  person  liavuirj  a 
power  must  execute  it  bond  fide  for  the  end  designed,  othericise  it  is 
corrupt  and  void.  The  power  here  was  intended  for  a  jointure,  not 
to  pay  the  husband's  debts.  The  motive  that  induced  Edmund  to 
execute  it  was  not  a  provision  for  his  wife.  This  case  is  not  distin- 
guishable from  the  cases  alluded  to,  nor  from  Lane  v.  Page.  If  a 
father  has  a  power  to  appoint  amongst  children,  and  agrees  with  one 
of  them,  for  a  sum  of  money,  to  appoint  to  him,  such  appointment 
would  be  void.  It  was  admitted  the  execution  would  be  void, 
but  it  was  said  to  be  only  so  amongst  the  children.  In  that  case 
the  money  is  to  go  to  the  children:  no  other  person  has 
any* interest  in  it;  here  the  remainder-man  has  an  im-  [*443] 
mediate  right  to  the  estate  after  the  death  of  Edmund, 
if  there  is  no  appointment.  It  was  said  to  differ  from  the  case  of 
parent  and  children;  and  that,  if  the  husband  had  fairly  executed 
the  power,  the  wife  might  have  immediately  afterwards  joined  in  a 
fine  to  pay  his  debts.  The  reason  is  plain:  she  would  then  have  had 
a  iirst  interest,  and  the  husband  would  have  had  no  control  over  it; 
l)ut  it  does  not  from  thence  follow  that  they  might  make  an 'agree- 
ment to  divide  the  money  between  them.  It  cannot  be  supposed 
he  would  have  settled  the  whole  on  her  without  some  such  view. 
She  was  of  no  family  and  had  no  fortune.  It  would  have  kept  the 
children,  if  they  had  any,  entirely  out  of  the  estate  till  her  death.  Ii  is 
like  the  case  put  of  parents  and  children;  and  I  think  Lane  v.  Page 
is  in  point,  and  ought  to  govern  my  decision  in  the  present  case. 

Declare  the  appointment  good  as  to  the  lOOZ.  only,  for  the  bene- 
fit of  Jane.  The  plaintiff  to  redeem,  on  payment  of  principal  and 
interest  of  the  mortgage  and  costs,  so  far  as  relates  to  the  mortgage. 
Account  of  rents  and  profits  from  the  death  of  Edmund;  and 
Belchier  to  pay  the  rest  of  the  costs. 
'  [h)  Sed  vide  2  Sugd.  Pow.  321. 

32  WHITE  ON   EQUITY.  497 


*  444  ALEYN  V.  BELCHIER. 

Aleyn  v.  Belchier  was  decided  upon  the  well-established  principle 
that  a  person  having  a  limited  power,  must  execute  it  bona  fide  for 
the  end  designed,  otherwise  the  af)pointment,  though  unimpeachable 
at  law,  will  be  held  corrupt  and  void  in  equity;  for,  although  the 
Lord  Keeper  seemed  inclined  to  think,  that  the  power  was  not  well 
executed,  even  at  law,  he  founded  his  decision  expressly  upon  the 
ground  that  the  appointment  was  a  fraud  upon  the  donor  of  the 
power,  and  therefore  void  in  equity.  See  Tophain  v.  The  Duke  of 
Portland,  31  Beav.  525;  1  De  G.  Jo.  &  Sm.  517;  S.  C,  nom.  Duke 
of  Portland  v.  Topham,  11  H.  L.  Ca.  32;  Topham  v.  Diike  of  Port- 
land, 5  L.  R.  Ch.  App.  40;  D'Abbadie  v.  Bizoin,  SLR.  Eq.  205. 
The  recent  case,  however,  of  In  re  Huish's  Charity,  10  L.  R.  Eq.  5, 
seems  to  have  departed  from  the  doctrines  above  laid  down.  [A 
power  in  the  connection  it  is  here  used  is  an  authority  which  enables 
a  person  to  dispose  of  an  interest  vested  in  him  or  in  some  third 
person:    Bisphara's  Eq.  Sec.  256. 

If  the  donee  of  a  discretionary  power  acts  bona  fide  and  with  his 
own  good  judgment  and  with  a  purpose  of  carrying  out  the  in- 
tention of  the  donor,  the  fact  that  he  promises  to  exercise  the  power 
in  a  certain  way  does  not  disqualify  him:  William's  Appeal,  23 
P.  F.  Smith,  249. 

Powers  must  be  executed  according  to  the  settlor's  intention  as 
indicated  by  the  declaration  of  trust:  Guion  v.  Pickett,  42  Miss. 
77;  Kerr  v.  Verner,  66  Pa.  St.  326.] 

The  principle,  somewhat  concisely  stated  by  the  Lord 
1^  *444  ]  Keeper  in  Aleyn  v.  Belchier,  has  been  *  recently  more  fully 
and  forcibly  enunciated  in  the  House  of  Lords.  "  The 
donee,  the  appointor  under  the  power,"  observes  Lord  Westbiiry,  C, 
"  must,  at  the  time  of  the  exercise  of  that  power,  and  for  any  pur- 
pose for  which  it  is  used,  act  with  good  faith  and  sincerity,  and  with 
an  entire  and  single  view  to  the  real  purpose  and  object  of  the 
power,  and  not  for  the  purpose  of  accomplishing  or  carrying  into  ef- 
fect any  bye  or  sinister  object  (I  mean  sinister  in  the  sense  of  its 
being  beyond  the  purpose  and  intent  of  the  power),  which  he 
may  desire  to  effect  in  the  exercise  of  the  power:  "  11  H.  L.  Ca.  54. 
Upon  the  same  grounds  as  the  decision  in  the  principal  case, 
Avhere  a  man  has  a  power  to  make  a  jointure  under  restrictions,  as 
1001.  a-year  for  every  lOOOZ.  of  the  wife's  portion,  and  he  has  him- 
self advanced  a  sum  of  money,  in  order  colourably  to  enable  him  to 
make  the  jointure  larger,  the  Court  will  reject  such  part  as  is  more 
than  proportionate  to  the  real  fortune:  Lane  v.  Page,  Amb.  234, 
per  Lord  Hardivicke;  Lord  Tyrconnel  \.  Duke  of  Ancaster,  Amh. 
237;  S.  a,  2  Ves.  500;  where  the  judgment  is  more  f ally  reported ; 
and  see  Weir  v.  Chamley,  1  Ir.  Ch.  Rep.  295,  317. 

So  an  appointment  to  a  child  by  a  father  in  consideration  of  his 
wife  postponing  her  jointure  to  some  mortgages  which  he  proposed 
to  effect,  was  held  by  Sir  W.  Page  Wood,^.-^.,  to  be  void:    Rowley 
V.  Rowley,  Kay,  242. 
498 


ALEYN  V.  liELCHIER.  *  445 

Upon  the  same  principle  also,  if  a  parent,  liavinj?  a  power  of  ap- 
pointment amongst  Lis  cbiklren,  a{)points  to  one  or  more  of  them, 
to  the  exchision  of  the  others,  npon  a  bargain  eitlu'r  f(jr  llie  herietit 
of  a  stranger  or  for  his  own  (jdcanfcKje,  ef^uity  will  relieve  against 
the  appointment  as  a  frand  npon  the  power,  as  where  there  was  a 
secret  understanding  that  the  child  should  assign  a  ])art  of  the  fund 
to  a  stranger.  {Danbeny  v.  Cockburn,  1  Mer.  026;  In  re  Marsden's 
Trusts,  4  Drew.  594);  [If  the  trustees  exercise  tber  di.scretionary 
powers  in  good  faith  and  without  fraud  or  collusion  the  Court 
cannot  review  or  control  their  discretion:  Eldredge  v.  Head,  10(5 
Mass.  582;  Snith  v.  Wildman,  37  Conn.  384;  Hawley  v  James, 
5  Paige,  485;  Morton  v.  Southgate,  28  Me.  41;  Mason  v.  Mason,  4 
Sandf.  023;  Pul press  r.  Church,  48  Pa.  St.  204.  If  the  trustee  ex- 
ercised the  power  for  any  fraudulent  or  improper  purpose,  or 
causes  it  to  be  executed  in  an  illusory  or  collusive  manner  the 
court  will  interfere  and  give  a  lemedy  to  the  injured  parties  not  for 
the  purpose  of  controlling  the  trustees'  discretion  but  to  relievo  the 
parties  from  the  consequences  of  an  improper  exercise  of  that 
power:  Matter  of  Vanderbilt,  20  Hun.  (N.  Y.)  520;  Morcum  v. 
D'Oencli,  2  Bennett,  Mo.  98.]  where  an  appointment  was  made  to 
one  of  the  children  in  consideration  of  her  having  agreed,  out  of 
part  of  the  sum  appointed,  to  pay  part  to  persons  not  objects  of  his 
power  (Hanleij  v.  M'Bcrmott,  9  I.  11.  E.  35);  to  pay  her  fathers 
debts  (B'armerx.  Martin,  2  Sim.  502;  and  see  Tliomjison  v.  Simp- 
son, 2  D.  &  W.  459;  8  Ir.  Eq.  Rep,  55,  59;  Asktiam  v.  Barker,  12 
Beav.  499;  Connolly  v.  M' Dermott,  Beat.  001;  Sugd.  Prop.  513; 
Jackson  v.  Jacksou,  Dru.  91;  7  C.  &  F.  977;  Carver  v.  Ricliards, 
27  Beav.  488;  1  De  G.  F.  &  Jo.  548) ;  or  where  the  appointment  is 
expressed  to  be  made  in  payment  of  a  debt:  Reid  v.  Reid,  25 
Beav.  409;  and  see  Beddoes  v.  Riujh,  20 Beav.  407,  411.  In  Arnold 
V.  Hardwick,  7  Sim.  3 13,  Sir  L.  ShadiccU,  V.-C,  even  held 
that  an  antecedent  bargai  u  between  a  father  and  two  of  *his  [  *  445  J 
children,  that  if  the  appointment  were  made  in  their 
favour  they  would  lend  the  fund  to  their  father,  would  vitiate  the 
appointment.  [Wherever  the  appointment  is  made  with  a  view  by 
the  trustee  to  his  obtaining  the  fund  it  is  a  fraud  on  his  power  of 
appointment:    Hill  on  Trustees,  307;  Bispham's  Eq.  Sec  250.] 

In  Duggan  v.  Duggan,  7  L.  R.  Ir.  152,  a  tenant  for  life  of  a  farm, 
with  power  of  appointment  among  her  children,  made  an  agreement 
with  such  of  them  as  had  attained  a  full  ago  to  appoint  the  fund 
to  them,  on  condition  that  they  would  purchase  her  life  interest  at 
a  valuation,  and  pay  her  the  purchase-money  out  of  the  fund  so 
appointed.  It  was  held  by  the  Court  of  Appeal,  afTirming  the  de- 
cision of  Chatterton,  V.  C,  reported  (5  L.  R.  Ir.  525),  that  the  ap- 
pointment was  bad,  as  its  primary  object  and  only  certain  effect  was 
to  confer  an  immediate  personal  benelit  npon  herself  alone,  even 
though,  pursuant  to  the  agreement,  she  applied  a  greater  part  of  the 
money  so  obtained  in  payment  of  the  debts  which  the  appointees 

499 


*44()  ALEVN  ^>.  BELCIIIER. 

had  joined  hor  in  securing,  and  which  had  been  contracted  by  her 
for  the  benefit  of  her  family  and  in  keeping  up  a  farm  where  they 
all  resided. 

An  appointment  to  a  child,  although  not  for  the  advantage  of  the 
appointor,  will  be  invalid,  if  it  be  not  made  bona  tide.  Thus,  in 
Salmon  v.  Gibbs  (3  De  G.  &  Sm.  343),  the  donee  of  a  power  of  ap- 
pointment among  his  children,  to  whom  it  was  given  in  default  of 
appointment,  had  only  two  daughters,  and  appointed  nearly  the 
whole  of  the  fund  to  one  of  them,  who  was  unmarried,  on  an  under- 
standing, but  without  any  positive  agreement,  that  the  appointee 
would  re-settle  one  moiety  of  it  on  trust  for  the  separate  use  of  the 
other  daughter,  who  was  married,  exclusively  of  her  husband,  and 
after  her  death  on  trust  for  her  children.  A  re-settlement  was  ac- 
cordingly made  without  the  privity  of  the  married  daughter,  who 
did  not  "hear  of  the  transaction  until  several  years  after.  It  was 
held  by  Sir  J.  L.  Knight- Bruce,  V.-C,  on  the  suit  of  her  husband, 
that  the  appointment  was  invalid,  and  a  settlement  was  directed  to 
be  made  of  his  wife's  share.  [The  courts  never  interfere  with  dis- 
cretionary powers  unless  they  are  abused:  Amesr.  Scudder,  ll"Mo. ^ 
App.  168;  Cromie  v.  Bull,  81  Ky.  646;  or  controlled  except  good' 
faith  is  absent:  Bacon  v.  Bacon,  55  Vt.  243;  and  if  a  trustee  is  al- 
lowed to  exercise  his  best  judgment  his  powers  are  very  broad: 
Heard  v.  Sill,  26  Ga.  302;  Veazie  v.  Forsaith,  76  Me.  172.] 

And  an  appointment  by  will  to  an  object  of  the  power,  unobjec- 
tionable when  it  was  executed,  may  be  rendered  invalid  as  a  fraud 
on  the  power  by  the  appointee  entering  into  an  arrangement  with 
the  appointor  under  which  a  person  not  an  object  of  tlie  power  was 
to  take  an  interest  in  the  sum  appointed:  In  re  Kirican's  Trusts,  25 
Ch.  D.  373. 

Moreover,  where  an  appointment  is  exercised  with  the  view  of 
defeating  the  object  of  the  power,  it  will  be  invalid,  although  the 
objectionable  arrangement  has  not  been  made    known  to   the  ap- 
pointee, if  the   appointment   was  made  by   the   appointor  relying 
upon   the  moral  influence  which  his  wishes,  when  made 
[*446]  known   to  *  the   appointee,  would  exercise  over  him.   in 
carrying  out  such   arrangement.     See    in  Re  Marsden''s 
Trusts,  4  Drew.  594.     There  a  married  woman  having  power  to  ap- 
point a  fund  (of  which  she  received  the  income  for  her  life),  among 
her  children,  appointed  the  whole  fund  at  her  death  to  her  eldest 
daughter.     It  appeared  in  evidence  that  the  married  woman,  con- 
sidering that  her  husband  was  unjustly  excluded  from  any  interest 
under  the  settlement,  intended  to  exercise  her  power  by  appointing 
the  whole  property  to  the  eldest  daughter,  upon  condition  that  upon 
attaining  her  majority  she  should  give  certain  interests  to  her  father; 
bitt  when  advised  that  such  an  appointment  would  on  the  face  of  it 
be   invalid,  she   exercised  her   power   by   giving   the  whole  of  the 
property  to  her  eldest  daughter  under  an   arrangement  with  her 
husband  that  on  her  death  the  daughter  should  be  informed  by  her 
500 


ALEVN  V.  KKLCIIIKR.  *  447 

fatlier  of  the  intention  with  which  tho  {ippointment  was  made,  and 
Ko  be  induced  to  carry  oat  the  intention.  Sir  li.  7'.  Kinderslcy,  V.- 
C,  held  the  appointment  bad,  as  a  fraud  on  the  power.  "  lu  some 
of  the  cases  which  have  been  cited,"  said  his  Honor,  ''  there  has 
been  a  direct  bargain  between  the  donee  of  the  power  and  the  per- 
son in  whose  favour  it  is  exercised,  under  which  the  donee  of  tiie 
power  was  himself  to  derive  a  beneiit;  and  certainly  there  has  been 
uothinj^  of  that  kind  in  this  case.  In  my  opinion,  however,  it  is 
not  necessary  that  tiie  ap))ointee  should  be  privy  to  the  transaction, 
because  the  desij^n  to  defeat  the  purpose  for  which  tho  power  was 
created  will  stand  just  the  same,  whether  the  appointee  was  aware 
of  it  or  not;  and  the  case  of  Wellcsley  v.  Morniugton  (  2  K.  &  J. 
1-13)  shows  that  it  is  not  necessary,  in  order  to  bring  the  case  with- 
in the  scope  of  the  jurisdiction  on  which  this  Court  acts,  that  the 
appointee  should  be  aware  of  the  intentions  of  the  appointment,  or 
of  its  being  actually  made.  Neither  is  it  necessary  that  the  ol>ject 
should  be  the  personal  benefit  of  the  donee  of  the  power.  If  the 
design  of  the  donee  in  exercising  the  power  is  to  confer  a  benefit, 
not  upon  himself  actually,  but  upon  some  other  person  not  being 
an  object  of  the  power,  that  motive  just  as  much  interferes  with  and 
defeats  the  purpose  for  which  the  trust  was  created,  as  if  it  had 
been  for  the  personal  benetitof  thedonee  himself."  See  n\so  Rank- 
ing v.  Barnes,  12  W.  R.  (V.-C.  K.)  565;  Topham  v.  The  Duke  of 
Purtland,  81  Beav.  525;  1  De  G.  Jo.  &  Sm.  517;  11  Ho.  Lo.  32, 
nom.  Tlie  Duke  of  Portland  V.  Topham;  Topham  v.  Duke  of  Port- 
land, 5  L.  li  Ch.  App.  40.  But  see P/'ot»?/ v.  Landor,  28  Beav.  504. 
[The  donee  of  a  power  cannot  execute  it  for  any  pecuniary  gain  di- 
rectly or  indirectly  to  himself  nor  for  any  other  purpose  personal  to 
himself:  Hetzel  y.  Hetzel,  09  N.  Y.  1 ;  and  if  the  jiurposes  becomes 
unattainable  the  power  ceases:  Brown  v.  Meigs,  11  Hun.  (N.  Y.) 
203. 

A  distinction  is  made  between  the  motives  which  lead  to  the  exe- 
cution of  a  power  and  tho  purpose  or  end  for  which  it  is  executed:" 
Perry  on  Trusts,  Sec.  511.] 

Although  questions  of  this  nature  generally  arise  upon 
a  *  fraudulent  arrangement  between  husband  and  wife,  or  [  *  447  ] 
between  parent  and  child,  the  interference  of  equity  is  by 
no  means  confined  to  cases  in  which  the  donee  and  object  of  the 
power  stand  in  that  relation  towards  each  other;  for  an  arrange- 
ment between  any  person  having  a  power,  even  although  he  nn\\ 
have  been  by  a  voluntary  deed  the  original  donor  of  the  power,  and 
any  of  the  objects  of  it,  in  fraud  of  tho  original  intention  with 
which  the  power  was  created,  will  render  an  appointment  void  in 
equity.  Thus,  in  Lee  v.  Fernie,  1  Beav.  483,  A.  B.,  being  desirous 
of  settling  property  on  the  female  descendants  then  in  existence  of 
C.  D.,  by  a  voluntary  deed  reciting  this  desire,  and  that  certain 
persons  therein  named  were  the  only  descendants  then  living  of  C. 
D.,  settled  a  part  of  the  property  on  the  persons  so  named,  and  re- 

501 


*  448  ALEYN  V.  BELCHIER. 

served  to  himself  a  power  of  appointing  the  remaining  part  of  the 
property  amongst  such  several  persons  before  named,  which,  in  de- 
fault of  appointment,  was  given  to  those  several  persons.  A.  B. 
afterwards  discovered  that  there  were  other  descendants  in  existence, 
of  C.  D.,  who  had  been  omitted,  and  to  remedy  the  omission,  he  ap- 
pointed a  part  of  the  fund  to  an  object  of  the  power,  upon  his  exe- 
cuting bonds  for  the  payment  to  the  persons  newly  discovered  of 
the  amount  when  received.  Lord  Langdale,  M.  B..,  held  that  the  ap- 
pointment was  void,  And  see  Topham  v.  The  Duke  of  Portland,  1 
De  G.  Jo.  &  Sm.  517. 

As  in  all  other  cases  imputing  fraud,  the  burden  of  proof  lies  on 
the  person  who  seeks  to  set  aside  an  appointment  as  fraudulent. 
Thus  in  Campbell  v.  Home,  1  Y.  &  C.  C.  C.  604,  where  a  lady  who 
had  a  life  interest  in  a  fund,  with  power  to  appoint  to  one  or  more 
of  her  children,  exclusively  of  the  others,  appointed  the  whole  to 
one  child,  who  had  attained  the  age  of  twenty-one,  and  assigned  her 
life  interest  to  such  child,  one  of  the  trustees  refused  to  join  in  the 
transfer  to  the  daughter.     Sir.  J.  L.  Knight-Bruce,  V.-C,  upon  a  bill 
being  filed  against  the  trustee  by  the  daughter,  held  that  he  was 
bound  to  join  in  the  transfer.     "What  may  be  the  intention,"  said 
his  Honor,  "of  this  lady  in  regard  to  the  disposition  of  her  money, 
is  not  a  question  with  which  the  Court  has  to  deal.     If  it  can  even 
be  shown  that  this  deed  was  executed  from  improper  motives,  those 
who  are  interested  in  doing  so  can  apply  to  set  it  aside."     So  in 
Askham  v.  Barker,  17  Beav.  37,  a  tenant  for  life  had  the  power  of 
appointing  the  settled  property  amongst  such  of  his  children  as  he 
should  think  fit.     The  trustees  had  in  breach  of  trust  lent  him  part 
of  the  trust  moneys,  without  taking  any  security.     Afterwards  the 
tenant  for  life  appointed  to  his  daughters  the  money  so 
[*448]  lent,  and   500Z.  in   exclusion  *    of  his   son.     Contempo- 
raneously the  daughters  exchanged  the  sum  so  appointed 
for  an  estate  of  the  father,  and  then  the  old  trustee  retired.    Sir  John 
Romilly,  M.  R.,  held  that  there  was  no  fraud  on  the  power,  as  the 
estate  was  worth  the  amount  given  in  exchange.     See  also  Af  Queen 
v.  B'arquhar,  11  Ves.  467  ;  Ch^een  v.  Pulsford,  2  Beav.  70  ;  Mills  v. 
Si^ear,  3  Ir.  Ch.  Rep.  304  ;  Pickles  v.  Pickles,  9  W.  R.  (V.-C.  K), 
396;  lb.  (L.  J.)  763;  Pares  v.  Pares,  33  L.  J.  (N.  S.)  Ch.  215. 

Where  there  is  no  fraud,  equity  will  not  advert  to  the  circumstances 
of  anger  and  resentment,  under  which  it  may  be  alleged  that  an  ap- 
pointment has  been  made.  See  Vane  v.  Lord  Dungannon,  2  S.  & 
L.  130,  where  Lord  Redesdale  said,  he  did  not  think  it  safe  to  ad- 
vert to  such  objections,  as  there  would  be  no  end  of  them,  if  they 
were  admitted  as  grounds  for  questioning  appointments,  since  in 
almost  all  these  cases,  where  there  has  been  an  inequality  in  the  ap- 
pointment, something  of  that  kind  has  existed.  See  also  Supple  v. 
Lmvson,  Amb,  729. 

Bnt  the  burden  of  proof  may  be  altered  by  circumstances.     Thus 
where  the  fair  inference  from  the  facts  is,  that  the  appointor  before 
502 


ali:yn  v.  dklchier.  *  449 

the  Gxocution  of  an  appointment  intended  to  derive  to  himself  a 
benefit  therefrom,  the  burden  rests  on  those  who  support  the  trans- 
action to  show  that  the  intention  had  been  abandoned  at  the  time 
of  the  execution  of  the  deed:  Humphrey  v.  Olcer,  7  \\.  R.  (L.  J.) 
334;  28  L.  J.  (N.  S.)  Ch.  400. 

It  is,  however,  ck'ar  that  where  an  appointment  has  been  set  aside 
by  reason  of  what  has  taken  place  between  the  donee  of  a  power 
and  an  appointee,  a  second  appointment  by  the  same  donee  to  the 
same  appointee  cannot  be  sustained,  otherwise  than  by  clear  proof 
on  the  part  of  the  api)ointee  that  the  second  appointment  is  [)er- 
fectly  free  from  the  orii^inal  taint  which  attached  to  the  first:  Topham 
V.  The  Duke  of  Portland,  5  L.  K.  Ch.  App.  40. 

And  the  same  rule  it  seems  is  applicable  to  all  cases,  whether  the 
fraudulent  appointment  has  been  set  aside  by  the  Court  or  revoked 
by  the  appointor:  Hntchins  v.  llutchins,  101.  It.  E.  453,  457.  [At 
law  the  trustee  has  largely  the  power  of  an  absolute  owner:  Slevin 
V.  Brown,  32  Mo.  170;  Harrison  v.  Rowan,  4  "Wash.  C.  C.  C.  202. 

But  in  equity  the  cestui  que  trust  is  regarded  as  the  owner,  and 
the  trustee  must  perform  certain  duties  for  him,  neither  omitting  nor 
adding  anything,  and  any  particular  directions  are  given  they  must 
be  carried  on  without  any  discretion:  "NVormley  r.  Id.,  8  Wheat.  421 ; 
Beatty  V.  Clark,  20  Cal.  11. 

Trustees  may  receive  directions  and  instructions  from  the  Court 
if  they  are  in  doubt  as  to  course  which  they  should  pursue:  Tilling- 
hast  V.  Coggeshall,  7  R.  I.  383;  Loring  v.  Steinman,  1  Met.  207  ; 
Petition  of  Baptist  Church,  51  N.  H.  424;  Woodruff  y.  Cook,  47  Barb. 
304;  Crosby  v.  Mason,  32  Conn.  482.] 

AVhere  the  donee  of  a  power  intends  to  appoint,  and  the  appointee 
intends  to  settle  the  property,  the  appointment  will  be  valid, 
although  the  appointee  by  a  deed  executed  soon  after,  or  even  by  the 
same  deed,  settles  the  property  upon  persons  within  the  marriage 
considerations  who  are  not  objects  of  the  power.  This  often  takes 
place  when  a  parent,  on  the  marriage  of  a  child,  makes  an  appoint- 
ment in  favour  of  the  child,  who  is  the  object  of  the  power,  and  the 
child,  either  by  the  same  or  a  subsecpient  deed  settles  the  property 
upon  (amongst  others)  her  intended  husband  and 
*  the  children  of  the  marriage,  who  are  not  objects  of  the  [  *  449  ] 
power  .  See  Routledge  v.  Dorril,  2  Ves.  jun.  357  ;  Lang- 
ston  v.  Blackmore,  Amb.  280;  West  v.  Berney,  1  Russ.  &  Mv.  431  ; 
White  v.  St.  Barbe,  1  V.  &  B.  399;  Wade  v.  Paget,  1  Bro.  C.  C.  363; 
Iricin  V.  Tnviv,  10  Ir.  Ch.  Rep.  29  ;  sed  vide  Trollope  v.  Pordledqe  ; 

1  De  G.  &  Sm.  002;  Salmon  v.  Gibbs,  3  De  G.  &  Sm.  343;  In  re 
GosseVs  Settlement,  19  Beav.  529,  537;  ^V right  v.  Goff,  22  Beav.  207; 
FitzRoyv.  Tlie  Duke  of  Richmond,  27  Beav.  190;  L>a)i/>/ v.  Arku-right, 

2  H.  &  M.  95;  Ciniinghauie  v.  Aristruther,  2  L.  R.  Sco.  App.  223, 
234;  Roach  v.  7'/-oof/,"  3  Ch.  D.  429. 

And  where,  after  an  appointment  macle  by  a  father  to  his  daughter 
previous  to  marriage,  the  intended  husband  in  the  marriage  settle- 

503 


*450  ALE\N  V.  BELCIIIER. 

ment  gave  up  to  the  father  aa  interest  in  the  sum  appointed,  to  which 
otherwise  he  (the  husband)  would  be  entitled,  by  his  marital  right, 
at  any  rate,  where  the  father  was  not,  on  making  it,  influenced  by 
what  the  husband  gave  up  to  him,  the  appointment  has  been  held 
not  to  be  thereby  invalidated.  See  Cooper  v.  Cooi^er,  5  L.  E.  Ch. 
App.  203.  There  by  a  settlement  made  on  the  marriage  of  Mr. 
Thomas  Daniell  and  Mrs.  Daniell,  funds  were  settled  after  the  death 
of  the  survivor  of  them  in  trust  for  all  and  every  of  the  children 
of  the  marriage,  as  they  should  jointly  or  as  the  survivor  should 
appoint;  and  in  default  of  appointment,  in  trust  for  all  the  chil- 
dren in  equal  shares.  Upon  the  marriage,  in  1834,  of  Sophia,  one 
of  their  daughters,  then  under  age,  to  Captain  England,  Mr.  and 
Mrs.  Daniell  appointed  a  portion  of  the  funds  in  Ler  favour,  and 
Mr.  Daniell  executed  a  bond  for  payment  of  an  equal  sum  to  her 
trustees  in  or  before  1842,  with  interest  in  the  meantime.  Subse- 
quently a  settlement  was  executed,  the  trusts  of  which  were  to  pay 
the  income  of  the  trust  funds  to  Mr.  and  Mrs.  England  successively 
for  life;  after  the  deatCi  of  the  survivor,  the  principal  to  go  among 
the  children  of  the  marriage;  and  the  ultimate  limitation  in  default 
of  children  of  the  marriage  was  "for  Mr.  Thomas  Daniell,  his  ex- 
ecutors, administrators,  and  assigns.''^  There  were  children  of  this 
marriage,  to  some  of  whom,  on  their  marriage,  appointments  had 
been  made  by  Mr.  and  Mrs.  England.  Upon  a  bill  being  filed  by 
the  second  husband  of  one  of  Mr.  and  Mrs.  Daniell's  daughters, 
praying,  amongst  other  things,  that  the  appointment  to  Mrs.  Eng- 
land might  be  declared  a  fraud  upon  the  power,  and  that  the  fund 
miarht  be  divided  as  in  default  of  appointment,  it  was  held  by  Lord 
Hatherly,  L.  C,  affirming  the  decision  of  Sir  "\V.  M.  James,  V.-C, 
(reported  8  L.  R.  Eq.  312),  that  the  appointment  to  Mrs. 
[*450]  England,  *  who  was  an  infant  at  the  time  of  her  mar- 
riage, was  not  corrupt  or  improper,  so  as  to  render  the 
appointment  invalid,  inasmuch  as  the  bargain  under  which  Mr. 
Thomas  Daniell  reserved  to  himself  an  ultimate  interest  in  the  ap- 
pointed fund,  was  a  bargain  between  himself  and  Mr.  England,  the 
intended  husband. 

In  Wicherley's  Case,  2  Eq.  Ca.  Abr.  391,  pt.  4;  Amb.  234,  n..  a 
remainderman  filed  a  bill  for  relief  against  a  jointure  made  by  the 
tenant  for  life  on  his  death-bed,  in  consideration  of  and  previous  to 
marriage,  by  virtue  of  a  power  reserved  to  him;  but  Lord  Parker, 
assisted  Yyy  Pratt.  C.  J.,  and  the  Master  of  the  Rolls,  refused  re- 
lief; although  the  tenant  for  life  had  asked  the  remainderman  to 
join  in  charging  the  estate  with  his  debts,  and  on  his  refusing  had 
said:  •'!  will  marry  and  execute  my  power,"  and  although  he  died 
eleven  days  after  his  marriage. 

And  it  has  been  recently  laid  down  that  the  good   sense  of  the 

rule  appears  to  be,  that  although   if  the  appointor,  either  directly 

or  indirectly,  obtain  any  exclusive  advantage  to  himself,  and  that  to 

obtain  this  advantage  is  the  object  and  the  reason  of  its  being  made, 

604 


ALEYX  V.  DHLCIIIER.  *  451 

then  the  appointmont.  is  bad,  novcrtheless,  if  tho  whole  transaction, 
taken  together,  shews  no  such  oWjcct,  but  only  shews  an  intention 
to  improve  tlio  subject  matter  of  the  ai)poiutm('nt  for  the  benefit 
of  all  tho  objects  of  the  power,  then  the  exercise  of  the  power  is 
not  fraudulent  or  void,  although  by  the  force  of  circumstances  such 
improvement  cannot  be  bestowed  on  tho  property  which  is  the  sub- 
ject of  the  appointment  without  the  appointor  to  some  extent  par- 
ticipating therein.  See  In  re  Huish's  Charity,  10  L.  R.  Eq.  5, 
10.  There  the  tenant  for  life  of  real  estate,  under  a  marria^ro  set- 
tlement, had  a  power  of  appointing  the  estate  among  the  children 
of  the  marriage,  of  whom  there  were  four.  The  settlement  con- 
tained no  power  of  granting  building  leases.  An  appointment  was 
made  to  one  of  the  children  of  the  marriage,  and  subsequently  the 
appointor  and  appointee  joined  in  conveying  the  estate  to  trustees 
upon  trust  to  grant  building  leases,  and  subject  thereto  as  to  one- 
fourth  part  thereof  upon  trust  for  the  appointee,  and  as  to  tho  re- 
maining three  fourths  upon  trusts  corresponding  with  those  of  the 
original  settlement.  It  was  held  by  Lord  Romilly,  M.  \\.,  that 
although  the  object  of  the  appointment  was  to  enable  building 
leases  to  be  granted,  and  the  tenant  for  life  thereby  gained  an  ad'' 
vantage  to  himself,  yet  the  transaction  being  for  thel)enetit  of  all 
the  objects  of  the  power,  was  valid,  and  that  a  willing  pnrchaser 
would  obtain  a  good  holding  title  thereunder.  See,  also,  MacQueen 
v.  Farquhar,  11  Yes.  4G7;  Cockcroft  v.  SutcUjfe,  25  L.  J.  (Ch.) 
oio. 

*Where, however,  thereasonof  anappointmentbeingmade  [  ^-451] 
to  the  appointee  arises  from  a  previous  contract  by  him  with 
thedoneeof  tho  power  to  settle  the  property  upon  i)ersonswhoare  not 
objects  of  the  power,  not  being  within  the  consideration  of  marriage, 
on  the  marriage  of  the  appointee,  then  the  appointment  is  invalid.^as 
b(?ing  a  fraud  upon  the  power:  See  Birley  v.  Blrley,  25  Beav.  290. 
There  a  parent  had  power  to  appoint  to  children  alone.  She  ap- 
pointed to  two  children  absolutely.  Ne.\t  year  the  appointees  set- 
tled tho  property  on  children  and  grand-children  of  the  parent,  by 
deed  reciting  that  when  the  appointment  was  made,  it  was  under- 
stood between  the  appointor  and  appointees,  that  the  latter  should 
consider  themselves  as  possessed  of  the  property  upon  the  trusts  of 
the  settlement.  It  was  held  by  Lord  Eomilly,M.  K,  that  the  trans- 
action was  a  fraud  upon  the  power  and  wholly  void.  See  also 
Pryor  v.  Pryor,  82  L.  J.  (N.  S.)  Ch.  731;  83  L.  J.  (N.  S.)  Ch.44l; 
2  De  G.  J.  &  S.  205;  In  re  Turner's  Settled  Estates,  28  Ch.  D.  205. 
The  case  of  Tucker  v.  Tucker,  13  Price,  (iO'T,  must  be  considered  as 
overruled;  and  see  Cutten  v.  Sanger,  2  Yon.  &  J.  459. 

The  question  in  all  these  cases  is  this,  In  what  character  did  the 
appointee  take  the  property?  If  he  took  absolutely,  he  migljt  do 
with  it  as  he  pleased;  but  if  in  trust  for  the  donee  of  the  power, 
and  to  effect  that  which  it  was  not  within  the  authority  of  the  donee 
to  effect  und.-r  the  terms  of  the  power,  then  it  is  illegal",  and  amounts 

505 


*  452  ALEYN  V    BELCIIIER, 

to  nothing:  per  Sir  J.  Romilly,  M.  R.,  in  Birley  v.  Birley,  25  Beav. 
308. 

"Where  trustees  improperly  pay  over  a  trust  fund  to  parties  taking 
it  under  a  fraudulent  execution  of  a  power,  they  will  be  compelled 
to  replace  such  fund.  See  Mackecltnie  v.  Majoribanks,  39  L.  J.  Ch. 
604;  18  W.  E.  (V.-C.  J.)  993.  But  if  trustees  raise  captious  and 
untenable  objections  to  acting  upon  appointments,  tjiey  may  not  be 
allowed  their  costs  (Canqybell  v.  Home,  1  Y.  &  L.  C.  C.  664);  a 
fortiori  if  they  have  been  influenced  by  corrupt  or  improper  motives: 
King  v.  King,  1  De  G.  &  Jo.  671.  The  Court,  however,  will  sup- 
port trustees  in  exercising  the  same  jealousy  which  the  Court  itself 
is  in  the  habit  of  exercising  if  they  have  acted  bona  tide  and  not 
been  influenced  by  any  corrupt  or  improper  motives:  King  v.  King, 
1  De  G.  &  J.  663,  671. 

A  question  sometimes  arises,  whether  a  fraudulent  arrangement 
as  to  part  .of  the  property  appointed  vitiates  the  appointment  in 
toto,  or  such  part  merely  to  which  the  fraud  extends.  [If  an  ap- 
pointment is  bad  in  part  it  is  generally  invalid  in  toto.  But  if  a 
good  appointment  has  been  made  in  favor  of  any  one  child  it  will 
not  be  invalid  owing  to  a  fraudulent  appointment  to  another,  pro- 
vided the  two  can  be  separated.] 

Where  a  fraudulent  appointment  has  been  made  in  pursuance  of 
a  power  of  jointuring,  the  wife,  in  whose  favour  the  power  is  exer- 
cised, being  the  sole  object  of  the  power,  it  appears  to  be 
[  *  452  ]  now  settled  that  the  appointment  *may  be  severed,  and 
held  good  to  the  extent  to  which  the  jointress  is  entitled, 
but  bad  with  reference  to  th*e  corrupt  and  improper  use  that  may 
be  made  of  the  surplus.  Lane  v.  Page,  Amb.  233;  Aleijn  v.  Bel- 
chier.  1  Eden,  138;  and  aiite,  p.  422;  and  the  i-emarks  of  Sir  W. 
Page  Wood,  V.-C,  in  Roivley  v.  Rowley,  Kay,  259. 

"Where,  however,  the  power  is  to  appoint  to  several  objects,  an 
appointment  to  one  of  them,  fraudulent  in  part,  will  ordinarily  be 
set  aside  in  toto.  See  Daubeny  v.  Cockburn,  1  Mer.  626,  where  this 
question  was  fully  considered.  In  that  case  there  was  a  voluntary 
settlement  of  personal  property,  in  trust  for  such  one  or  more  of 
his  children  as  the  settlor  should  appoint.  He  appointed  to  one 
child  exclusively,  upon  a  secret  understanding  that  she  should 
assign  a  part  of  the  fund  to  or  in  favour  of  a  stuanger.  It  was 
contended,  upon  the  aiathority  of  Lane  v.  Page,  and  the  principal 
case,  that  the  appointment  was  only  void  as  to  the  jiart  of  the  fund 
agreed  by  the  daughter  to  be  assigned.  However,  Sir  W.  Grant, 
M.  R.,  held  the  appointment  void  in  toto.  ''Upon  principle,"  said 
his  Honor,  "I  do  not  see  how  any  part  of  a  fraudulent  agreement 
can  be  supported,  except  where  some  consideration  has  been  given 
that  cannot  be  restored;  and  it  has  consequently,  become  impossible 
to  y^escind  the  transaction  in  toto,  and  to  replace  the  23arties  in  the 
same  situation. 

"lu  the  case  of  Lane  v.  Page,  the  subsequent  marriage  formed 
506 


ALKYN  V.  BELCIIIER.  *  453 

such  a  consideration  on  the  part  of  the  wife.  In  the  case  of  Aleyn 
V.  Belchier,  Avliero  tlie  apj)ointmeut  was  subsequent  to  the  marriage, 
it  can  liardly  be  said  to  have  been  decided  that  the  appointment  was 
^ood  in  any  part.  For  it  appears,  by  the  registrar's  book,  that  the 
bill  contained  a  submission  to  pay  the  annuity  to  the  wife,  and  only 
sought  relief  against  the  other  objects  of  the  appointment."  [It 
was  formerly  held  that  illusory  appointments  under  a  power  were 
void  in  equity,  i.  e.,  appointments  of  a  nominal  instead  of  a  sub- 
stantial share  to  one  of  the  members  of  a  class  where  power  was 
given  to  appoint  amongst  them  all.  This  doctrine  is  not  now  ap- 
proved: Adams  on  Equity,  Sec.  180;  Fonty  v.  Fonty,  1  Bail.  Eq. 
529;  Cowles  v.  Brown,  4  Cal.  477.] 

"In  ordinary  cases  of  fraud  the  whole  transaction  is  undone,  and 
the  parties  are  restored  to  their  original  situation.  [May  v.  Sey- 
mour, 17  Fla.  725;  Foy  v.  Haughton,  83  N.  C.  4G7;  Kesh  v  Allen- 
town  Bank,  12  Norris  (Pa.),  397;  Selden  v.  Myers,  20  How.  (U.  S.) 
50G;  Jones  v.  Austin,  17  Ark.  498;  Laidla  t-.  Loveless,  40  Ind.  211; 
Strong  V.  Linington,  8  Brad.  W.  430;  Byers  v.  Daugherty,  40  Ind. 
198.]  If  a  partially  valuable  consideration  has  been  given,  its  re- 
turn is  secured  as  the  comlition  on  which  equity  relieves  against 
the  fraud.  But,  in  such  a  case  as  the  present,  the  appointment  of 
any  particular  proportion  to  any  particular  child,  is  a  purely  vol- 
untary act  on  the  part  of  the  parent;  and,  although  as  good,  if 
fairly  made,  as  if  the  consideration  were  valuable,  yet  what  is  there 
that  a  Court  can  treat  as  a  consideration,  which  must  be  restored  if 
a  fraudulent  appointment  be  set  aside,  or  as  incapable  of  restitu- 
tion, and,  therefore,  support  the  appointment,  so  far  as  it  is  for  the 
child's  benefit?  To  say  it  is  to  be  supported  to  that  extent,  would 
be  to  say  that  the  child  shall  have  the  full  benefit  of  the 
fraudulent  agreement.  .  .  Either,  then,  you  *must  hold  [  *  453  ] 
that  a  child  giving  a  consideration  for  an  appointment  in 
its  favour,  is  guilty  of  no  fraud  on  the  power,  or  you  must  wholly 
set  aside  the  appointment  procured  by  the  fraud.  Now,  although 
the  father  in  proposing  such  a  bargain  is  much  more  to  blame  than 
the  child  in  acceding  to  it,  still  it  is  impossible  to  say  that  an  ap- 
pointment obtained  by  means  of  such  an  agreement,  is  fairly  ob- 
tained. It  is  a  frand  upon  the  other  objects  of  the  power,  who 
might  not,  and  in  all  probability  would  noi  have  been  excluded  but 
for  this  agreement.  It  is  more  particularly  a  fraud  upon  those  who 
are  entitled  in  default  of  appointment;  for  non  constat  that  the 
father  would  have  appointed  at  all,  if  the  child  had  not  agreed  to 
the  proposed  terms."     See  Beddoes  v.  Pugh,  20  Beav.  407,  412. 

The  distinction  taken  by  Sir  W.  Grant  seems  to  be  sound  in 
principle;  and  appointments  to  children,  in  part  fraudulent,  have 
ever  since,  notwithstanding  the  dicta  attributed  to  Lord  Hardwicke, 
in  Lane  v.  Page,  Amb.  235.  been  set  aside  in  toto.  See  Farmer  v. 
Martin.  2  Sim.  502;  Arnold  v.  Hardwicke,  7  Sim.  343-  and  see  Lee 
v.  Fernie,  1  Beav.  483. 

507 


*  454  ALEYN  V.  BELCIIIER. 

The  general  rule,  however,  laid  down  in  Daubeny  v.  Cockburn,  (1 
Mer.  626),  that  where  an  appointment  is  made  for  a  bad  purpose 
the  bad  purpose  affects  the  whole  appointment,  does  not,  it  seems, 
apply  to  cases  in  which  the  evidence  enables  the  Coart  to  distin- 
guish what  is  attributable  to  an  authorised  from  what  is  attribut- 
able to  an  unauthorised  purpose:  Topham  v.  The  Duke  of  Portland, 
1  De  G.  Jo.  &Sm.  517;  Carver  v.  Richards,  1  De  G.  F.  &  Jo.  548; 
Rankin  v.  Barnes,  12  W.  R.  (V.-C.  K.)  565;  and  see  Sadler  y.  Pratt, 
5  Sim.  632. 

So,  where  there  is  a  sum  of  money  to  be  appointed  among  chil- 
dren, although  an  appointment  to  one  child  may  be  void  on  account 
of  a  corrupt  agreement,  an  appointment  to  another  child,  although 
by  a  contemporaneous  deed,  if  it  can  be  severed  from  the  previous 
appointment,  so  as  not  to  form  part  of  the  same  transaction  will  be 
valid:  Rowley  v.  Rotuley,  Kay,  242;  and  see  Harrison  v.  Randall, 
9  Hare,  397. 

A  fraudulent  execution  of  a  power  will  be  set  aside  as  against  a 
purchaser  for  valuable  consideration,  ivith  notice  of  the  fraud  (Palmer 
V.  Wheeler,  2  Ball.  &  B.  18;  Hall  v.  Montague,  8  L.  J.  Ch.  16/);  or 
even  if  he  had  not  notice  of  the  fraud,  if  he  has  not  got  the  legal 
estate,  for  then  there  are  only   equities  to  deal   with;  and,  as  ob- 
served by  Sir  W.  Grant,  M.  R.  "The  payment  of  a  money  consid- 
eration cannot   make  a   stranger    become  the  object  of    a   power 
created  in  favour  of  children;  he  can  only  claim  under  a 
[  *  454  ]  valid  appointment  executed  in  *  favour  of  some  or  one  of 
the  children : "   Daubeny  v.  Cockburn,  1  Mer.  626,  638. 
But  a  purchaser  must,  it  seems,  have  actual  notice  of  a  fraud  upon 
a  power,  in  order  to  be  affected   by  it;  circumstances    which  may 
give  rise  to  mere  grounds  of  suspicion  or  probability  of  fraud  are 
not  sufficient.     Thus,  in  ^PQueen  v.  Farquliar,  11  Yes.  467,  where 
A.  was  tenant  for  life,  remainder  to  bis  wife  for  life,  with  power  to 
appoint  to  one  or  more  of  his  children  by  her,  A.  entered  into  a 
contract  with  T.  for  the  sale  of  the  estate  to  him,  and  afterwards 
appointed  (subject  to  the  life-interest  of  himself  and  his  wife)  the 
fee  simple  of  their  estate  to  R.,  the  eldest  son,  who  had  attained 
the  age  of  twenty-one:  and  then  A.  and  his  wife,  and  R.  their  son, 
conveyed  the    estate   to  T.  in  consideration  of  a  sum  of  money,  ex- 
pressed to  be  paid  to  all  of  them.     This   appearing  upon   an  ab- 
stract, an  objection  was  taken  to  the  title,  that  the  appointment  by 
A.  in  favour  of  his  son  R.  appeared  to  have  been  made  under  a  pre- 
vious agreement  between  them;  and  that  if  A.  derived  any  benefit 
from  that  agreement,  which  seemed  probable,  or  even  made  any  pre- 
vious stipulation  that  his  son  should  join  him  in  a  sale,  which  there 
appeared  the  strongest  reason  to  apprehend,  it  would  have  been  a 
fraudulent  execution  of  the  power.     Lord  Eldon,  however,  overruled 
the  objection.      "It  does  not  appear,"  said  his  Lordship,  "that  the 
estate  sold  for  less  than  its  value— that  the  son  got  less  than  the  value 
of  his  reversionary  interest.     But  the  estate  becoming  his  absolutely 
508 


ALEYN  V.  llKiAUn-Ai.  *  455 

by  the  appointment,  ho  by  an  instrument,  afTocted  by  nothing  but 
the  contents  of  it,  as  the  owner  of  the  reversion,  accedes  to  the  pur- 
chase, conveys  with  his  father  and  mother,  in  consideration  of 
8()()<)/.,  and  tlie  parties  taking  the  conveyance  pay  the  money  to  the 
father,  the  mother,  and  the  son,  to  be  dealt  with  according  to  their 
respective  interests;  that  is,  according  to  their  rights  in  th(!  land; 
and,  though  the  contract  with  T.  was  only  to  snl^stitute  money  for 
the  estate,  there  was  nothing  to  show  that  the  son  was  not  to  re- 
ceive a  due  proportion  of  the  money,  when  the  contract  was  after- 
wards executed  by  the  deed,  in  which  he  joins,  and,  with  his  father 
and  mother,  receives  all  the  money.  L'pon  the  question,  therefore, 
whether  those  possibilities  and  ])robabilities  are  sufficiently  evi- 
denced by  anything  to  show  that  this  is  not  a  good  title,  my  opin- 
ion is,  that  it  is  a  gootl  title:  "  see  also  Cockroft  v.  Sntcliffc,  2  Jur. 
N.  S.  383,  25  L.  J.  Ch.  313;  Laurie  v.  Bankes,  4  K  &  J.  142. 

And  it  seems  that  the  Court  would  bo  less  disposed  to  impeach 
an  appointment  as  fraudulent,  after  a  great  lapse  of  time,  and 
where  there  have  been  subsequent  dealings  with  the  funds, 
such,  for  *  instance,  as  subsequent  appointments  thereof  on  [  *  455  ] 
the  marriage  of  daughters  or  the  establishmeut  of  sons  in 
the  world:  Cooper  v.  CoojJer,  5  L.  R.  Ch.  App.  203,  212,  213;  S.  C, 
8  L.  K.  Eq.  312. 

AVhere  there  is  an  arrangement  for  settling  the  interests  of  all 
the  branches  of  a  family,  in  fact  a  family  arrangement,  children 
may  contract  ivith  each  other  to  give  a  parent,  who  had  a  power  to 
distribute  property  among  them,  some  advantage,  which  the  y)arent, 
without  their  conti'act  with  each  other,  could  not  have.  Thus,  in 
Davis  V.  Uphill,  1  Swanst.  130,  an  estate  being  limited,  under  her 
marriage  settlement,  to  A.  for  life,  with  remainder  to  her  chil- 
dren by  her  deceased  husband,  in  such  manner  as  she  should  ap- 
point, remainder,  in  default  of  appointment,  to  all  the  children  as 
tenants  in  common;  an  agreement  by  the  children,  that  on  her 
joining  in  suffering  a  recovery,  the  Urstuse  to  which  the  recovery 
should  enure,  should  be  to  A.  for  life,  icithont  impeachmenf  of 
waste,  is  it  seems  valid  in  equity:  and  the  Court,  therefore,  re- 
fused to  continue  an  injunction  to  restrain  her  from  cutting  timber. 
See  also  i?/<odf's  V.  Cook,  2  S.  &  S.  488;  Skelton  v.  Flanagan,  1  Ir. 
Eq.  Rep.  3ry2. 

And  a  re-settlement  upon  persons  not  objects  of  the  power,  in 
pursuance  of  an  agreement  entered  into  before  the  execution  of  the 
power  with  the  only  object  thereof,  may  be  supported  upon  the 
ground  of  its  being  a  family  arrangement.  See  Wright  v.  Goff,  22 
Bear  207. 

But  if  any  such  transaction  taken  as  a  whole  appears  not  to  be 
a  bona  fide  family  arrangement,  but  that  it  has  been  entered  into 
in  fraud  of  the  power,  for  the  purpose  of  giving  a  benefit  to  a  per- 
son who  was  by  the  donor  excluded   from  being  an  appointee,  or 

509 


*  456  ALEYN  V.  BELCHIER. 

from  deriving  any  advantage  from  the  exercise  of  the  power,  it  will 
be  held  wholly  void:  Agas-siz  v.  Squire,  18  Beav.  431. 

If  under  a  power  of  appointment  and  selection  among  children, 
an  appointment  be  made  upon  a  condition  to  be  performed  by  the 
appointee,  not  authorised  by  the  power,  the  appointment  will  be 
good,  but  the  condition  void:  Stro^id  v.  Norman,  Kay,  313;  Re 
Lord  Sonde's  Will,  2  Sm.  &  Giff.  416;  Watt  v.  Creke,  3  Jur.  N. 
S.  56,  3  Sm.  and  Giff.  362,  and  see  Stuart  v.  Lord  Castlestuart,.  8 
Ii-.  Ch.  Rep.  408;  Eoach  v.  Trood,  3  Ch.  D.  429. 

The  principle  laid  down  in  Aleyn  v.  Belchier,  viz.'  that  a  poiver 
must  be  executed  bond  fide,  and  for  the  end  designed,  is  applicable 
also  to  another  class  of  cases  where  parents,  having  power  to  raise 
portions  oat  of  land  for  children,  and  even  to  fix  the  time  when 
they  are  to  be  raised,  will  not  be  allowed  by  a  Court  of  Equity,  as 
personal  representatives  of  a  deceased  child,  to  derive  any 
[  *  456  ]  advantage  from  an  appointment  made  *to  the  child  during 
infancy,  whilst  sickly  and  not  likely  to  live,  and  when 
not  in  want  of  a  portion,  as,  for  instance,  on  marriage,  especially  if 
the  sum  so  appointed  was  in  default  of  appointment  settled  on  the 
child  on  attaining  twenty-one  or  marriage  under  that  age.  Thus 
in  Hinchinbroke  v.  Seymour,  21  Ch.  D.  341,  as  stated  hyJessel,  M. 
R.,  after  an  examination  of  the  record,  correcting  the  imperfect 
and  incorrect  report  in  1  Bro.  C.  C.  395,  it  appears  that  on  the 
marriage  of  Lord  Hinchinbroke  (afterwards  Earl  of  Sandwich)  to  a 
daughter  of  the  Earl  of  Halifax,  the  latter  settled  an  estate  on  him- 
self for  life,  then  to  his  son-in-law  for  life,  and  in  the  events  which 
happened,  to  the  infant  defendant  Montague.  And  there  "was  in 
the  settlement  a  power  by  deed  to  raise  10,OOOZ.  for  younger  chil- 
dren, but  in  default  of  appointment  there  was  a  limitation  (omitted 
in  Brown's  Report),  under  which,  in  default  of  appointment,  the 
10,000Z.  would  go  (in  the  events  which  happened)  to  a  daughter 
(the  only  younger  child  of  the  marriage)  upon  her  attaining  the 
age  of  twenty -one,  or  marrying  under  that  age,  with  a  provision  for 
her  maintenance  in  the  meantime.  [Wills  generally  contain  pro- 
visions for  raising  tlie  portions  for  the  children,  and  a  term  of  years 
is  usually  carved  out  of  the  estate  and  limited  to  trustees  to  secure 
the  payment  of  these  charges:  Hawley  v.  James,  5  Paige,  318;  2 
Spence's  Eq.  390.]  At  the  time  when  his  only  daughter  was  four- 
teen years  of  age.  and  (though  this  fact  is  omitted  in  Brown's  Re- 
port) was  well  known  to  be  in  a  state  of  consumption.  Lord 
Hinchinbroke  made  an  immediate  appointment  to  his  daughter. 
She  died  soon  afterwards,  and  her  father,  as  her  administrator,  tiled 
a  bill  against  the  trustees  to  have  the  10,00OZ.  raised  for  his  own  use, 
but  Lord  Thurloiv  dismissed  the  bill,  and  there  is  no  doubt  that  he 
did  so  on  the  ground  of  fraud  on  the  part  of  Lord  Hinchinbroke. 
"We  have,"  says  Jessel,  M.  R.,  in  commenting  on  this  case  in  Henty 
V.  Wrcy,  21  Ch.  D.  342  ''a  girl  of  fourteen  in  consumption.  W'e 
have  a  provision  of  ]  0,000^.  made  for  her  to  which,  without  her  father 
510 


ALKVN   V.  IJELCIIIKU.  *  457 

doing  anything,  she  wotild  have  been  entitled  on  her  marriage  or 
attaining  age,  with  maintenance  in  the  meanwhile,  and  we  have  her 
father  executing  an  appointment  by  which  this  sum,  chargeable  not 
on  his  family  estate,  but  on  an  estate  which,  subject  to  his  life  in- 
terest, belonged  to  another  family,  was  given  to  her  immeciiately,  so 
as  to  be  raisablo  immediately,  obvionslij  7rith  the  view  of  obtaining 
the  vioney  for  himself.  As  soon  as  she  dies  he  takes  out  letters  of 
administration  and  then  files  a  bill  to  raise  the  charge.  It  was  in- 
evitable under  those  circumstances  that  the  charge  should  be  treated 
as  created  in  fraud  of  the  power.  ...  It  was  quite  obvious 
what  the  motive  of  the  father  was.  It  could  not  have  been  for  the 
benefit  of  the  child,  because  she  was  provided  for  already. 
.  .  .  The  costs  ought  *to  have  followed  the  count.  No  [  *  457  ] 
doubt  the  explanation  of  the  bill  being  dismissed  without 
costs  ip,  that  it  was  a  family  suit,  and  no  costs  were  asked  for." 

It  was  evidently  Lord  Eldon's  view  that  the  decision  of  Lord 
Thurlow  did  not  turn  upon  construction  or  rule  of  law,  but  on  fraud 
on  the  power:  IW Queen  \.  Farquhar,  11  Yes.  467,  479;  The  Queens- 
beri'!/  Case,  1  Bli.  339,  397.  See  also  Keily  v.  Keily,  5  Ir.  Kq.  Rep. 
442;  4  D.  &  W.  38;  '2  Con.  &  Laws.  334,  per  Sugden,  L.  C. 

It  is  true  that  Sir  Anthony  Hart,  L.  C.  I.,  in  Edgeworth  v.  Edge- 
ivorth.  Beat.  328,  and  Sir  IF.  Page  Wood,  V.-C,  in  Wellesley  v.  Earl 
of  Mornington,  2  K.  &  J.  143,  took  a  different  view.  And  this  prob- 
ably was  in  consequence  of  Lord  T/iKr/oiu's  judgment  in  Lord  Hinch- 
inbroke  v.  Seymour,  1  Bro.  C.  C.  395,  being  like  the  report  of  the  case, 
both  brief  and  inaccurate. 

In  his  judgment  in  Hinchinbroke  v.  Seymour,  1  Bro.  C.  C.  395, 
Lord  Thurlow  said: — "  The  meaning  of  a  charge  for  children  is  that 
it  shall  take  place  when  it  shall  be  wanted,  it  is  contrary  to  the  nature 
of  such  a  charge  to  have  it  raised  before  that  time.  And  althoncrh 
the  power  is,  in  this  case,  to  raise  it  when  the  parent  shall  think 
proper,  yet  that  is  only  to  enable  him  to  raise  it  in  his  own  life,  if  it 
should  be  necessary.  It  would  have  been  very  proper  so  to  do  upon 
the  daughter's  marriage,  or  for  several  other  purposes;  but  this  is 
against  the  nature  of  the  power." 

In  the  absence,  however,  of  fraud  on  the  part  of  the  appointor  if 
portions  charged  on  land,  be  vested  under  a  clear  power,  the  por- 
tions will  be  raisable  though  the  children  entitled  thereto  die  before 
they  wantthem,  and  the  appointor  incidentally  derives  a  lienefit  there- 
from as  their  administrator.  See  Henty  v.  Wrey,  21  Ch.  D.  332; 
[See  for  notes  to  this  case  Brett's  Leading  Cases  in  Modern  Equity 
(Text  Book  Series),  843,]  there  Sir  B.  P.  Wrey,  having  a  power  of 
charging  portions  for  younger  children  on  real  estate  under  a  settle- 
ment which  gave  him  in  the  clearest  terms  power  to  fix  the  ages  and 
times  at  which  the  portions  should  vest,  ^ndcontained  noprovision 
for  raising  portions  in  default  of  appointment,  and  having  three 
daughters  aged  nine,  seven,  and  one,  appointed  by  deed  in  1828, 
10,000Z.  (being  the  full  amount  he  was  entitled  to  charge)   for  the 

511 


*  459  ALEYN  V.  BELCH  ER. 

portions  of  Lis  daughters,  to  be  a  vested  interest  in  the  three  daugh- 
ters respectively,  immediately  on  the  execution  of  the  deed,  the  por- 
tions to  be  paid  to  them  at  such  times  and  in  such  proportions  as  he 
should  by  deed  or  will  appoint,  and  in  default  of  appointment  to  be 
paid  to  them,  share  and  share  alike,  at  twenty-one  or  marriage,  if  the 
same  age  or  time  should  happen  after  his  decease,  but  if  in  his  life- 
time, then  the  payment  to  be  postponed  till  after  his  death, 
[  *458]   unless  he  should  signify  bis  *  consent  in  writing  to  their 
being  raised  and  paid  in  his  lifetime;  maintenance  at  4?.  per 
cent,  to  be  raised  from  his  death;  and  the  deed  contained  a  power 
of  revocation.     In  1832  he  made  by  deed  a  similar  appointment  by 
way  of  confirmation  of  the  former,  the  portions  to  be  vested  imme- 
diately on  the  execution  of  the  deed.     One  daughter  married  and 
attained  twenty-one,  and' in  1851  Sir  B.  P.  Wrey  appointed  5000Z. 
(part  of  the  KXOOOZ. )  to  her.     The  other  two  died  infants  and  spin- 
sters, one  in  18:56,  the  other  in  1845.     Sir  B.  P.  Wrey  assigned  to 
the  plaintiff  for  value  in  1875  the  bOOOl.  appointed  to  the  two  de- 
ceased daughters,  and  after  his  death  the  plaintifi" brought  an  action 
to  have  it  raised.     It  was  held  by  the  Court  of  Appeal  (reversing  the 
decision  of  Sir  E.  Kay,  J.,  who  had  dismissed  the  action  as  against 
the  owners  of  the  settled  estate),  1st  that  where  the  donee  of  a  power 
of  charging  portions  on  real  estate  has  under  the  terms  of  the  power, 
clear  authority  to  fix  the  times  at  which  the  portions  shall  vest,  and 
appoints  a  portion  to  vest  immediately,  there  is  no  rule  of  law  which 
prohibits  its  heing  raised  in  the  event  of  the  child  dying  under 
twentv-oue  and  unmarried,  and  that  the  decision  could  not  be  sup- 
ported upon  the  ground  that  the  appointment,  so  far  as  it  made  the 
portions  vest  immediately,  was  not  within  the  power.     And  2ndly 
it  was  held  that  the  decision  could  not  be  supported  on  the  ground 
that  the  appointment,  so  far  as  it  made  the  portions  vest  immediately, 
was  a  fraud  on  the  power,  as  being  made  with  a  view  to  secure  a 
benefit  to  the  appointor,  for  that  having  regard  to  the  fact  that  if  the 
father  had  died  without  making  any  appointment,  the  children  would 
have  been  unprovided  for,  it  was  manifestly  for  the  benefit  of  the 
children  that  the  father  should  make  an  appointment,  and  that  as 
there  was  nothing  to  lead  to  the  conclusion  that  when  the  appoint- 
ments were  made  the  children  were  likely  to  die  young,  and  as  in 
the  event  of  the  early  death  of  the  appointor  the  children  might  have 
derived  a  benefit  from  the  absolute  vesting  of  their  portions,  there 
was  no  ground  for  attributing  to  him  an  intention  to  benefit  himself 
by  making  the  portions  vest  immediately,  and  the  Court  therefore 
came  to  the  conclusion  that  the  plaintiff  was   entitled  to  have  the 
bOOOl.  raised.     See  also  Gee  v.  Gurney,  2  Coll.  486. 

In  the  ease  of  Henty  v.  Wrey  it  will  be  observed  that  the  sums  ap- 
pointed to  the  children  who  died  were  vested  in  them  immediately  on 
the  appointment  being  made,  and  for  that  reason,  in  accordance  with 
the  old  authorities,  the  portions  were  held  raisable  because 
[  *459]  they  were  vested,  although  the  persons  entitled  to  *  them 
512 


ALEYN  V.  BKLCIIIKR.  *  -ioO 

died  too  yonntr  to  require  the  naoney:    See  Bartholomew  v.  Meredith, 

1  Vern.  270;  Earl  Rivers  v.  Earl  Derby,  2  Vern.  72;  Coicper  v. 
Scott,  3  P.  Wms.  119:  Remnant  v.  Hood,  2  De  G.  F.  &  J.  396; 
Davies  v.  Htigiienin,  1  H.  A:  M.  730. 

[Where  portions  are  effectually  cliarj^ed  on  land,  the  trustees 
UHually  take  a  power  of  selling  or  mortgaging  for  the  purpose  of 
raising  (lieui  although  the  power  is  net  expressly  given  by  teimsof 
the  instrument:     Hill  on  Trustees,  300.] 

A  charge,  however,  on  land  in  favour  of  a  person  to  be  raised  and 
paid  at  a  particular  time,  will  not  vest  in  him  before  the  arrival  of 
that  time,  even  although  an  annual  sum  for  maintenance  or  interest 
in  the  meantime  was  to  be  paid,  and  in  cases  of  this  description  the 
charge  does  not  become  vested  before  it  becomes  raisable,  and  if  the 
person  entitled  to  the  charge  died  before  that  time  his  executor  or 
administrator  could  not  require  it  to  be  raised,  not  because  it  was 
not  v^-anted,  but  because  jt  was  not  vested:  Lady  Poulet  v.  Lord 
Poiilef,  1  Vern.  204;  Smith  v.  Smith,  2  Vern.  92;  Yates  v.  Plietti- 
place,  2  Vern.  416;   TTarr  v.  Wan^,  Prec.  Ch.  213;  Briienv.  Bruen, 

2  Vern.  439,  Prec.  Ch.  195;  Carter  v.  Bletsoe,  2  Vern.  617,  Prec.  Ch. 
267;  Tournay  v.  Totirnay,  Prec.  Ch.  290;  Duke  of  Chandos  v.  Tal- 
bot, 2  P.  Wms.  001;  Boycqt  v.  Cotton,  1  Atk  552. 

The  judgment  of  Lord  Thurloiv,  in  Hinchinbixyke  v.  Seymour,  from 
which  the  notion  arose  that  a  portion  charged  on  land  and  vested  is 
not  to  bo  raised,  if  the  person  entitled  to  it  die  before  he  or  she 
want  it,  is  not  only  opposed  to  the  old  authorities,  but  is  distinctly 
overruled  by  Henty  v.  Wrey,  in  which  it  is  clearly  shown  that  the 
decision  of  the  case  (the  judgment  in  which  is  doubtless  incoiTect) 
turned  not  upon  the  vesting  of  the  portions,  but  the  fraud  of  the 
appointor. 

Lord  Justice  Lindky,  in  his  judgment  in  Henty  v.  Wrey,  21  Ch. 
D.  359,  gives  the  following  clear  and  acurate  result  of  the  authori- 
ties on  this  subject.  "  1.  That  powers  to  appoint  portions  charged 
on  land  ought,  if  there  language  is  doubtful,  to  be  construed  so  as 
not  to  authorise  appointments  vesting  those  portions  in  the  ap- 
pointees before  they  want  them,  that  is  before  they  attain  twenty - 
one  or  (if  daughters)  marry.  2.  That  were  the  language  of  the 
power  is  clear  and  unambiguous,  efi'ect  must  be  given  to  it.  3.  That 
■where,  upon  the  true  construction  of  the  power  and  appointment, 
the  portion  has  not  vested  in  the  lifetime  of  the  appointee  the  por- 
tion is  not  raisable,  but  sinks  into  the  inheritance.  4.  That  where 
upon  the  construction  of  both  instruments  the  portion  has  vested  in 
the  appointee,  the  portion  is  raisable  ever^  though  the  appointee  dies 
under  twenty-one  or  (if  a  daughter)  unman-ied.  5.  That  appoint- 
ments vesting  portions  in  children  of  tender  years  wlio  die  soon  after- 
wards are  looked  at  with  suspicion;  and  very  little  additional 
evidence  of  improper  motive  *  or  object  will  induce  the  [  *  460  ] 
Court  to  set  aside  the  appointment  or  treat  it  as  invalid,  but 
that  without  some  additional  evidence  the  Court  cannot  do  so." 

33  WHITE  ON    EQUITY.  513 


*  -161  ALEYN  V    BELCIIIER. 

An  appointment,  moreover,  to  an  infant  child  before  lie  wants  it,  of 
a  sum  already  set  apart,  will  not  be  invalid,  merely  because  the  ap- 
pointor may,  in  the  event  of  the  child's  death,  derive  some  benefit 
from  it  to  the  disappointment  of  those  entitled  in  default  of  ap- 
pointment: Butcher  v.  Jacksoii,  14  Sim.  444;  Hamilton  v.  Kirwan, 
2  J.  <fe  L.  393;  Beere  v.  Hof mister,  '23  Beav.  101;  Hemming  v.  Grif- 
fith, 2  GiflP.  403;  Knapp  v.  Knax>p,  12  L.  R.  Eq.  238. 

A  fortiori  will  the  appointment  be  good  if  the  father  himself  can 
derive  no  benefit  from  it,  although  upon  the  death  of  a  child  the 
mother  takes  as  his  representative  to  the  exclusion  of  the  persons 
who  would  have  been  entitled  in  default  of  appointment.  Thus  in 
Fearon  v.  Desbrisay  (14  Beav.  641),  a  father  had  a  power  of  ap- 
pointing a  fund  amongst  his  children,  their  shares  to  vest  at  such 
ages  as  he  should  appoint,  and  if  he  made  no  appointment,  it  was 
to  vest  in  them  equally  at  twenty-one  or  marriage,  and  there  was  a 
gift  over,  if  there  should  be  no  child  entitled  under  the  trusts  or 
power:  on  the  birth  of  a  son,  the  father  executed  the  power  by  giv- 
ing the  whole  to  such  son,  but  afterwards  upon  an  expected  addi- 
tion to  his  family,  he,  being  in  a  weak  state  of  health,  revoked  the 
former  appointment  and  executed  the  power  in  favour  of  all  his 
children,  tvho  sliould  he  living  at  his  death,  equally.  The  father  then 
died.  It  was  held  by  Sir  John  Romilly,  M.  R.,  that  the  appoint- 
ment was  good,  as  not  being  a  fraud  on  the  power,  and  that  upon 
the  death  of  one  of  the  children  the  mother  was  entitled  to  her  share 
as  administratrix. 

Although  it  would  doubtless  be  a  fraud  upon  the  trusts  if  trustees 
having  power  of  advancing  moneys  to  an  infant  under  powers  of 
maintenance  and  advancement,  laid  out  money,  for  instance,  in  the 
purchase  of  a  commission  in  the  army,  with  the  intention  that  the 
infant  should  by  sale  of  the  commission  obtain  the  money  for  other 
purposes,  that  will  not  be  the  case  where  the  advance  has  been 
bona  fide  made,  although  the  infant  is  soon  afterwards  obliged  to 
sell  his  commission  in  consequence  of  his  debts,  and  he  or  his  as- 
signees for  value,  if  without  notice  of  any  impropriety  in  the  sale, 
will  be  entitled  to  the  proceeds  thereof:  Lawrie  v.  Bankes,  4  K.  & 
J.  142. 

Where  a  father  has  power  to  appoint  and  divide  at  his  discretion 
among  his  children  a  fund  to  which  they  are  entitled  in  default  of 
appointment,  he  cannot  in  making  appointments  to  them  enter  into 
a  bargain  by  which  he  can  derive  any  benefit  in  the  resi- 
[  *  461  ]  due  of  the  trust  fund  which  may  *  remain  unappointed. 
See  Cumngham\.  Anstruther,  2  L.  R.  Sc.  &  D.  223,  better  re- 
ported 2  Paters.  App.  2013.  'There,  by  a  marriage  settlement  there  was 
a  power  to  divide  among  children  of  the  marriage,  funds  amounting  to 
60,000Z.,  and  failing  such  division  the  children  were  to  take  share  and 
share  alike  in  full  satisfaction  of  legitim.  There  were  three  daughters, 
and  upon  the  marriage  of  two  of  them  5000Z.  was  appointed  to  each, 
and  subsequently  20,000Z.  was  appointed  to  the  third  unmarried 
514 


ALEVN  i^.  Br<:LClIIER.  *  462 

daughter,  and  upon  each  appointtnont  bfing  made  there  was  a 
declaratiou  by  the  appointee  that  the  appointment  was  in  full  satis- 
faction of  the  legitim  or  all  claims  that  might  be  open  to  her  under 
the  marriage  settlement.  The  father  of  the  appointees  having  sur- 
vived their  mother,  dealt  with  the  residue  of  the  fund  as  if  he  were 
absolutely  entitled  to  it.  It  was  held  by  the  House  of  the  Lords, 
reversing  the  decision  of  the  Court  of  Session  in  Scotland,  that  the 
father  could  gain  no  benefit  to  himself  in  the  residue  of  the  trust 
fund  by  any  arrangement  with  the  appointees,  that  the  p(jwer  had 
been  rightly  exercised  so  far  as  regarded  the  quantity  ai)i)ointed  to 
each  daughter,  and  that  the  residue  unappointed  was  equally  divis- 
ible among  the  three  sisters.  It  was  not  held  that  the  appoint- 
ments were  invalid  by  law,  although  it  might  have  been  suggested 
that  they  were  partly  made  in  consideration  of  the  releases  by  the 
ajipointees,  and  Lord  Westbury  said  that,  "What  are  called  words 
of  release  amount  to  no  more  than  this— that  the  sum  appointed  to 
tlie  child  shall  be  taken  as  part  of  the  settlement  provision  in  which 
the  child  under  the  trust  settlement  had  an  interest." 

An  api)ointment  will  fail  entirely  if  the  donee  inseparably  attach 
to  a  gift  made  thereby  a  condition  not  authorised  by  the  power. 
Thus,  in  WAbbadic  v.  Bizoin,  5  Ir.  R.  Eq.  205,  A.  having  power  to 
appoint  certain  lands  among  her  children  in  such  shares  and  pro- 
portions as  she  pleased,  devised  part  thereof  to  a  trustee,  on  trust 
to  sell  and  lay  out  the  proceeds  in  the  purchase  of  freehold  pro- 
perty in  France,  and  to  convey  the  property,  if  purchased,  to  "the 
testatrix's  second  son  in  fee,  provided  he  should  previously  decide 
to  reside  in  France,  but  if  he  decided  not  to  reside  in  Franco,  then 
she  decided  to  leave  the  ])roperty  so  purchased  to  another  of  her 
sons..  The  Court  said  that  on  the  face  of  the  will,  it  was  apparent 
that  the  devise  to  the  second  son  was  one  which  resulted  from  an. 
intention  on  the  part  of  the  donee  of  the  power  to  induce  her  son 
to  reside  in  France,  by  giving  him  property  which  had  belonged  to 
another  person,  and  over  which  the  testatrix  had  only  a 
])ower  of  appointment.  The  testatrix  held  out  an  *  induce-  [  *  4P)2  ] 
ment  to  her  son  to  reside  in  France:  that  was  an  indirect 
object,  not  warranted  by  the  power,  and  so  inseparably  connected 
with  the  devise  or  appointment  that  it  made  a  fail  entirely. 

A  tenant  for  life  may  clearly  release  a  power  to  appoint  amnngst 
children  ( TT>,s^  v.  Berney,  1  Russ.  &  Mv.  484;  Horner  v.  Sirann,T. 
&  R.  480;  Smith  v.  Death,  5  Madd.  371;  Bickley  v.  Guest,  1  Russ. 
&My.  44G;  1  Bligh.  15;  Davies  v.  Huguenin,  1  H.  &  M.  730),  or 
may  covenant  with  a  mortgagee  of  his  life  interest  not  to  exercise 
a  power  of  charging  the  estate  with  portions  for  younger  children 
(Hurst  V.  Hurst,  10  Beav.  372,  and  see  Miles  v.  Knight,  17  L.  J. 
(N.  S. )  Ch.  458;  12  Jur.  GHG),  or  with  creditors  to  make  a  certain 
appointment  by  will  in  favour  of  a  child  an  object  of  the  ]K)wer: 
Coflin  V.  Cooper,  2  Dr.  &  Sm.  365;  Palmer  v.  Locke.  15  Ch.  D.  294, 
13  W.  R.  (V.-C.K.)57L 

515 


*  463  ALEYN  V.  BELCHIER. 

But  no  effect  will  be  given  to  a  release  of  a  power  by  a  father,  so 
as  to  vest  property  in  himself,  which  was  intended  for  his  children; 
or  in  other  words,  a  power  given  for  a  particular  purpose  will  not  be 
allowed  by  a  fraudulent  circuity  to  be  exercised  for  a  different  pur- 
pose. Thus,  in  Cuninghame  v.  TImrloiv,  1  Euss.  &  My.  436,  where 
a  fund  was  limited  to  a  father  for  life,  with  remainder  to  his  chil- 
dren, in  such  shares  as  he  should  appoint,  and  in  default  of  appoint- 
ment to  the  -children  equally,  the  father  released  the  power  as  to  a 
portion  of  the  fund,  so  as  to  vest  a  share  of  it  in  himself  as  execu- 
tor of  a  deceased  son,  who,  in  default  of  appointment,  took  a  vested 
interest.  Sir  L.  Shadwell,  V.-C,  although  he  was  of  opinion  that 
the  power  was  extinguished  by  the  release,  nevertheless  decided 
that  the  Court  ought  not  to  give  effect  to  the  release,  so  far  as  it 
operated  to  vest  a  share  of  the  fund  in  the  father,  who  was  the 
donee  of  the  power. 

But  where  a  father  obtains  no  advantage  by  a  release  of  a  power 
to  mortgagees,'  full  effect  will  be  given  to  the  release.  See  Smith 
V.  Houblon,  26  Beav.  482,  there  a  father  had  an  exclusive  power  of 
appointment  in  favour  of  his  children  over  a  fund,  which  in  default 
of  appointment  was  limited  to  them  equally,  and  as  representative ' 
of  a  deceased  son  he  was,  in  default  of  appointment,  beneficially 
entitled  to  one-third  of  the  fund.  The  father  released  the  power 
to  his  mortgagees.  A  bill  was  filed  by  the  mortgagees,  praying, 
amono-st  other  things  for  a  declaration  that  the  deceased  son's 
sharefon  the  release  of  the  power,  became  vested  in  the  mortga- 
gees. Counsel  for  the  mortgagees  distinguished  the  case  from  Cim- 
ingham  v.  Thurlow,  inasmuch  as  there  the  donee  of  the  power,  by 
the  deed  releasing  it,  obtained  for  himself  a  personal  bene- 
[  *463  ]  fit,  to  which  *  he  would  not  otherwise  have  been  entitled; 
whereas  in  the  case  under  consideration,  the  release  was  to 
the  mortgagees,  as  against  whom  the  mortgagor  could  not  execute 
the  power  in  derogation  of  his  own  grant.  It  was  held  by  Sir  John 
Romilly,M..  R.,  that  the  power  had  been  effectually  released,  and 
he  declared  the  rights  of  the  parties  consequent  thereon. 

If  the  consent  of  another  person  to  the  exercise  of  a  power  is  re- 
quisite, and  that  consent  is  obtained  by  misrepresentation,  the  ap- 
pointment will  be  set  aside.  Thus,  in  Scroggs  v.  Scroggs,  Amb. 
Blunt's  ed.  272,  and  App.  812  (a  case  which  falls  entirely  within  the 
principle  of  Aleyn  v.  Belchier),  a  father  was  tenant  for  life,  with 
remainder  to  the  use  of  such  of  his  son  and  sons  as  he,  with  the 
consent  of  the  trustees,  or  the  survivor  of  them,  should  appoint,  and, 
in  default  of  appointment,  to  his  first  son  in  tail  male.  The  father, 
by  misrepresenting  his  eldest  son  to  the  surviving  trustee  as  extrav- 
agant and  undutiful,  prevailed  upon  him  to  consent  to  an  appoint- 
ment to  a  younger  son.  Upon  a  bill  being  filed  by  the  eldest  son, 
it  was  proved  that  the  son  was  dutiful  and  not  extravagant,  and  that 
the  father,  from  improper  motives,  had  misrepresented  him  to  the 
trustee.  The  appointment  was  set  aside  by  Lord  Hardivicke,  who 
516 


ALEYN  V.  HKLCIllKR.  *  4G4 

observed,  that  if  the  trustee  and  father  had  met  fairly^  and  without 
imposition,  and  considered  the  family  circumstances,  and  had  ex- 
ecuted the  power  for  such  reasons  as  biased  tbeir  judgment,  the 
Court  would  not  interfere;  but  that,  upon  the  whole,  he  was  of 
opinion  that  it  was  a  power  accompanied  with  a  trust,  and  that  it 
was  executed  by  an  imposition  on  the  trustee,  who  was  designed  to 
be  a  check  on  the  father. 

It  seems  that  where  in  a  marriage  settlement  there  is  a  power  of 
revocation  and  new  appointment,  with  the  consent  of  the  trustees, 
it  will  be  presumed  that  it  was  the  intention  of  the  parties  that  such 
consent  was  only  to  be  given  for  the  benefit  of  the  objects  of  the 
settlement,  and  that  if  it  be  given  merely  for  the  purpose  of  putting 
money  into  the  hands  of  the  father,  the  revocation  and  new  appoint- 
ment will  be  considered  as  a  fraud  upon  the  power,  and  consequently 
void.  See  Eland  v.  Baker,  29  Beav.  137,  there  by  a  marriage  settle- 
ment, land  was  settled  by  the  father  of  the  lady  upon  the  wife  for 
life,  remainder  to  the  husband  for  life,  remainder  to  the  children  of 
the  marriage.  And  there  was  a  power  to  the  father  of  the  lady  and 
the  husband  and  wife,  with  the  consent  of  the  trustees  in  writing, 
by  deed  absolutely  to  revoke  and  make  void  all  or  any  of  the  uses 
or  trusts  and  also  by  the  same  or  any  other  deed  to  limit  and 
declare  new  uses  and  trusts  in  substitution  for  those  *revok-  [  *  404  ] 
ed.  The  father  of  the  lady,  and  the  husband  and  wife, 
with  the  consent  of  the  trustees,  revoked  the  settlement  so  far  as 
Avas  necessary,  and  appointed  the  property  to  one  of  the  trustees  in 
fee  to  secure  a  sum  of  money  advanced  to  the  husband.  The  estate 
was  afterwards  sold  under  a  power  contained  in  the  mortgage  deed. 
It  was  held  by  Sir  John  Romilly,  M.  R.,  that  a  good  title  could  not 

be  made  under  it "  How,  "  said  his  Honor,  "  could  it 

be  said  that  this  is  a  fair  exercise  of  the  discretion  of  the  trustees 
in  favour  of  their  cestuis  que  trustent,  if  they  exercise  it  in  such  a 
manner  so  as  totally  to  defeat  the  whole  beneficial  interest  of  those 
persons  whom,  as  trustees,  they  are  bound  to  protect  ? "'  And  after 
observing  in  addition  to  this  upon  the  objection  that  the  mortgage 
was  to  one  of  the  trustees  who  became  thereby  pro  tanto  a  purchaser 
of  the  estate,  his  Honor  said  it  was  impossible  to  force  the  title 
upon  a  purchaser. 

Where,  a  person  makes  an  appointment  which  is  afterwards  set 
aside  as  being  in  fraud  of  a  power,  the  question  is  undetermined 
whether  in  the  event  of  his  not  having  reserved  a  I'ight  of  revocation 
and  new  appointment  he  can  again  exercise  his  power:  The  Duke 
of  Portland  v.  Topham,  11  Ho.  Lo.  Ca.  32. 

It  has  been  intimated  in  a  recent  case,  where  a  person  was  donee 
of  a  power  to  be  exercised  only  by  will,  in  favour  of  children,  that 
a  covenant  on  the  marriage  of  a  child  to  exercise  the  power  by  ap- 
pointing a  certain  share  in  favour  of  such  child,  may  be  illegal  and 
void — upon  the  ground  that  the  power  is  fiduciary,  to  be  exercised 
by  will  only;  so  that  up  to  the  last  moment  of  his  life,  the  donee 

517 


*465  ALEYN  ?;.  BELCUIER. 

was  to  have  the  power  of  dealing  with  the  fund  as  he  should  think 
it  his  duty  to  deal  with  it,  having  regard  to  the  then  wants,  position, 
merits,  and  necessities  of  his  children:  per  Sir  W.  M.  James,  V.-C, 
in  Thacker  v.  Key,  8  L.  E.  Eq.  414,  415;  where,  however,  it  was  not 
necessary  to  decide  the  point.  In  the  subsequent  case  of  Bulfeel  v. 
Plnmvier,  6  L.  R.  Ch.  App  109,  Lord  Hatlierley,  C,  said,  that  to 
hold  an  appointment  made  pursuant  to  such  a  covenant  "bad  as  a 
device,  would  be  to  strain  the  doctrine  as  to  improper  appointments 
too  far."     See  also,  Coffin  v.  Cooper,  2  Drew.  &  Sm.  365. 

Lord  Hatherley's  dictum  has  been  approved  of  and  followed  in 
Palmer  v.  Locke,  15  Ch.  D.  294,  there  a  father  who  had  a  limited 
power  of  appointment  over  a  fund  by  will  only,  among  his  children, 
made  a  will  by  which  he  appointed  a  sum  of  5000?,  to  his  son  J. 
and  the  remainder  among  his  other  sons.     A  few  weeks  afterwards 

he  executed  a  bond  binding  himself  that  his  son  J.  should 
[  *465  ]   receive,  either  out  of  his  *  own  property  or  out  of  the  fund 

subject  to  the  power,  the  sum  of  5000/.  at  the  least.  The 
father  died  without  revoking  his  will.  It  was  held  by  the  Court  of 
Appeal,  affirming  the  decision  of  Jessel,  M.  R.,  that  the  appoint- 
ment was  valid. 

Illusory  appointments. — There  is  another  class  of  cases  to  be 
noticed,  in  which  Courts  of  equity  have  interposed,  upon  the  same 
principle,  but  not  with  the  same  beneficial  results  as  in  Aleyn  v. 
Belchier;  viz.  where  a  person  having  a  non-exclusive  power  of  ap- 
pointing property  amongst  a  class,  although  with  full  discretion  as 
to  the  amount  of  their  shares,  has  exercised  it  by  appointing  to  one 
or  more  of  the  objects  a  merely  nominal  share;  such  an  appoint- 
ment, although  valid  at  law,  would,  if  executed  previous  to  the  pass- 
ing of  1  "Will.  4,  c.  46,  be  set  aside  as  illusory,  not  being  exercised 
bona  fide  for  the  end  designed  by  the  donor.  [See  note  number  8.] 
To  illustrate  the  doctrine  of  illusory  appointments,  suppose  A.  had 
a  power  to  distribute  100,000Z.  amongst  a  class  in  such  shares  and 
proportions  as  he  should  appoint,  and  he  gave  one  of  the  class  five 
shillings  only,  that  would  be  at  law  a  good  execution  of  the  power: 
Morgan  v.  Surman,  1  Taunt.  289.  But  such  an  appointment,  or  an 
appointment  of  ten  guineas,  or  of  any  sum  merely  nominal,  taking 
into  consideration  the  amount  to  be  distributed,  and  the  number  of 
persons  amongst  whom  it  was  distributable,  would,  if  executed 
previous  to  the  passing  of  1  Will.  4,  c.  46,  be  held  void  in  equity  as 
illusory.  It  would,  indeed,  be  perfectly  competent  to  the  donee  of 
a  power  to  make  a  very  unequal  distribution  of  the  fund,  provided 
that  the  inequality  was  not  so  great  as  to  lay  the  appointment  open 
to  the  objection  of  its  being  merely  nominal  and  illusory,  and,  con- 
sequently a  fraud  upon  the  donor  of  the  power,  who,  it  would  be 
presumed,  intended  that  each  of  the  objects  of  the  power  should 
take  a  substantial  share.  Amongst  the  earlier  cases  on  this  subject, 
see  Gibson  v.  Kinven,  1  Vern.  60;   Wall  v.  Tlmrborne,  1  Vern.  355, 

518 


ALEYN  V.  BELCIIIER.  *  466 

414,  and  Cragrave  v.  Perrost  there  cited;  Astry  v.  Astry,  Free.  Cb. 
250;  Maddisoa  v.  Andrew,  1  Ves.  57;  Coleman  v.  Seymour,  1  Ves. 
211;  Vanderzee  v.  Ado, a,  4  Ves.  771;  Spencer  v.  Spencer,  5  Ves. 
3G2. 

The  doctrine  applied  to  appointments  of  real  as  well  as  of  personal 
estate:  P(>ckHngton  v.  Bayne,  1  Bro.  C.  C.  450. 

Much  litigation  arose  iu  consetjueuce  of  the  great  difficulty  of 
deciding  what  was  a  substantial,  and  not  merely  an  illusory  sharn; 
and  great  dissatisfaction  with  the  doctrine  was  expressed  by  the 
most  eminent  judges,  who  endeavored,  in  many  cases,  to  narrow  it. 
See  Wilxon  v.  Piggott,  2  Ves.  jun.  351;  Butcher  \.  Butcher, 
9  Ves.  882;  1  *  V.  &.  B.  79;  Bax  v.  Whitbread,  10  Ves.  [*4G6  J 
15;  Mocatta  v.  Lousada,  12  Ves.  123;  Duke  \.  Sylvester, 
12  Ves.  120. 

If  a  share  not  illusory  came  to  one  of  the  objects  in  default  of 
appointment,  it  would  be  considered  as  an  appointment,  and  no 
question  of  allusion  would  arise:   Wilson  v.  Piggott,  2  Ves.  jun.  351. 

An  appointment  therefore,  to  some  only  of  the  objects  of  a  power 
which  did  not  authorise  an  exclusive  appointment,  might  be  ren- 
dered valid,  by  the  partial  failure  of  the  appointment  in  consequence 
of  its  being,  to  the  extent  to  which  it  failed,  a  fraud  upon  the 
power:  Ranking  v.  Barnes,  33  L.  J.  Ch.  539;  12  AV.  R.  (V.-C.  K.) 
505. 

So  if,  under  a  non-exclusive  power  to  appoint  amongst  all  of  a 
class,  a  part  was  well  appointed  to  some,  by  one  instrument,  leaving 
a  share  not  illusory,  un appointed,  which  was  afterwards  appointed 
by  a  separate  instrument,  so  as  entirely  to  exclude  others,  the  last 
ap])ointment  only  would  be  void:  Wilson  v.  Piggott,  2  Ves.  jun. 
355;   Young  v.  Lord  Waterpark,  13  Sim.  199. 

But  if  it  were  set  aside  a  sufficient  fund  might  be  set  free  to  go 
to  the  other  objects,  or  in  default  of  appointment,  and  therefore 
none  of  them  Mould  be  excluded:  lb. 

"Where,  however,  under  such  a  power  successive  appointments 
were  made  by  the  satne  instrument,  as  for  instance  a  will,  if  they 
exhausted  the  whole  of  the  fund,  without  providing  for  some  of  the 
objects  of  the  power,  the  whole  of  the  appointments  would  be  in- 
valid, and  not  merely  the  last,  even  if  it  were  in  the  shape  of  a  re- 
siduary gift:  Bulteel  v.  Plummer,  6  L.  R.  Ch.  App.  100,  overruling 
S.  a,  8  L.  R.  Eq.  585. 

It  may  be  here  mentioned  that  in  order  to  prevent  the  improper 
use  of  the  large  powers  intrusted  to  a  tenant  for  life  under  the 
Settled  Land  Act,  1882  (45  &  40  Vict.  c.  38),  it  was  thereby  en- 
acted that  "  a  tenant  for  life  shall,  in  exercising  any  power  under 
this  Act,  have  regard  to  the  interests  of  all  parties  entitled  under 
the  settlement,  and  shall,  in  relation  to  the  exercise  thereof  by  him, 
be  deemed  to  be  in  the  position  and  to  have  the  duties  and  liabili- 
ties of  a  trustee  for  those  parties:"  sect.  53.  Under  this  section 
it  seems  a  tenant  for  life  will  not  be  restrained  fi-om  selling  merely 

519 


*467  ALEVN  V.  BELCHIER. 

on  speculative"  evidence  adduced  by  the  remainderman  of  the  pros- 
pective value  of  the  estate  (Thomas  v.  Williams,  24  Cb.  D.  558); 
but  if  he  attempted  to  sell  the  property  infinitely  below  its  value  he 
would  be  restrffined  from  doing  so  ( Wheelright  v.  Walker,  23  Ch. 
D.  752,  762),  or  otherwise  than  by  public  auction  without  commu- 
nicating to  the  remainderman  any  offer  made:  S.  C,  W.  N.  ISS'S, 
p.  154 

[  *  467  ]  ^Formerly,  an  illusoiy  appointment  might  be  justified, 
and  equity  would  not  give  relief  against  it  when  misbe- 
haviour was  shown  in  the  child  to  whom  such  illusory  share  was 
given  (Maddison  v.  Aiidretv,  1  Ves.  57);  but  this  doctrine  was 
overruled  in  Kemp  v.  Kemp,  5  Yes.  855;  1  V.  &  B.  97. 

Where,  however,  gross  inequality  was  accounted  for  by  the  situa- 
tion of  the  children,  and  was  humane  and  wise  and  discreet,  the 
Court  would  not  call  it  illusory:  Boyle  v.  The  Bishop  of  Peterbor- 
ough, 1  Ves.  jun.  310,  per  Lord  Thurloiv.  Thus,  an  appointment 
of  a  veiy  small  share  to  a  son,  who  was  an  uncertificated  bankrupt, 
would  not  be  looked  Tipon  as  illusory:  Bax  v.  Whitbread,  16  Ves. 
15.  So,  if  a  parent  had  made  a  provision  for  a  child,  an  appoint- 
ment of  a  very  small  share  to  that  child  would  cot  beheld  illusory: 
Brisfoive  v.  W^ard,  2  Ves.  jun.  336;  Smiths.  Lord  Cavielford,  2  Ves. 
jun.  698;  Lo7ig  v.  Long,  5  Ves.  445;  Spencer  \.  Spencer,  b  Yes.  367. 
The  provision,  it  seems,  must  have  been  made  by  the  donee  of  the 
power  (Mocatta  v.  Lousada,  12  Ves.  123);  though  Lord  Alvanley 
thought  that  the  same  result  would  follow  if  the  provision  was 
made  aliunde:  Vanderzee  v.  Aclom,  4  Ves.  785;  and  see  16  Ves.  25; 
Lysaght  v.  Royse,  2  S.  &  L.  151,  and  1  V.  &  B.  97.  It  is  clear, 
however,  that  a  provision  moving  from  the  donor  of  the  power 
would  not  be  sufficient:  Kemp  v.  Kemp,  5  Ves.  861. 

The  interference  of  Courts  of  equity,  in  cases  of  illusory  appoint- 
ments, was  so  unsatisfactory  in  its  results,  that  the  Legislature  at 
length  interfered,  and  rendered  appointments  under  non  exclusive 
powers  valid,  provided  all  the  objects  of  the  power  took  under  the 
exercise  thereof,  or  in  default  of  appointment,  a  share,  however 
small  it  might  be.  See  the  Illusory  Appointments  Act  (1  Will.  4, 
c.  46),  passed  June  16,  1830,  by  which  it  was  enacted  that  no  ap- 
pointment, which  from  and  after  the  passing  of  the  Act  should  be 
made,  in  exercise  of  any  power  or  authority  to  appoint  any  prop- 
erty, real  or  personal,  amongst  several  objects,  should  be  invalid, 
or  impeached  in  equity,  on  the  ground  that  an  unsubstantial,  illus- 
ory, or  nominal  share  only  should  be  thereby  appointed  to  or  left 
unappointed  to  devolve  upon  any  one  or  more  of  the  objects  of  such 
power;  but  that  every  such  appointment  should  be  valid  and  efPec- 
tual  in  equity,  as  well  as  at  law,  notwithstanding  that  any  one  or 
more  of  the  objects  should  not  thereunder,  or  in  default  of  such  ap- 
pointment take  more  than  an  unsubstantial,  illusory,  or  nominal 
share  of  the  property  subjected  to  such  power:  proz^id^d  that  noth- 
ing in  the  Act  contained  should  prejudice  or  affect  any  provision 
520 


ALEYN  V.  BELCIIIER.  *  469 

in  any  deed,  will,  or  other  instrument  creating  any  such 
power  as  *arorosai(l,  which  .should  declare  the  amount  of  [  *4G8  ] 
the  sbaro  or  shares  from  which  no  object  of  the  jKjwer 
should  be  excluded;  and  proridexl  also,  that  nothinj^  in  the  Act 
contained  should  be  construed,  deemed  t)r  taken  at  law  or  in  equity 
to  give  any  other  validity,  force,  or  effect  to  any  appointment  than 
such  appointment  would  have  had  if  a  substantial  share  of  the 
property  affected  by  the  power  had  been  thereby  appointed  to  or 
left  unappointed  to  devolve  upon  any  object  of  such  power.  See 
In  re  Clones'  Estate,  3  I.  R.  Eq.  G2l,  and  the  very  interesting  re- 
marks of  Sir  Geo.  Jessel,  M.  R.,  in  (Jainsford  v.  Dunn,  17  L.  R. 
Eq.  405. 

Lord  St.  Leonards  has  observed,  with  reference  to  this  Act,  that, 
where  it  is  intended  that  a  party  shall  have  power  to  divide  a  fund 
among  several  objects  in  substantial  proportions,  according  to  his 
discretion,  but  shall  not  be  at  liberty  to  give  a  merely  nominal  share 
to  any,  the  smallest  sum  which  the  person  creating  the  power  should 
wish  each  of  the  objects  in  any  events  to  have,  should  be  named, 
aid  it  should  be  declared  that  the  donee  of  the  power  shall  not  be 
at  liberty  to  appoint  a  less  sum  to  any  of  the  objects:  1  Pow.  545. 

Where,  moreover,  there  is  a  gift  of  fegacies  by  the  donee  of  a 
non  exclusive  power  to  certain  objects  of  the  power,  and  a  gift  of 
the  residue  of  his  real  and  personal  property,  including  that  over 
which  he  had  the  power  of  appointment,  to  the  other  objects  of  the 
power,  the  legacies  will  be  chargeable  rateably  upon  the  residuary 
property  not  included,  and  that  included  within  the  power,  and  if 
the  legacies  thus  became  entitled  even  to  a  merely  nominal  sum 
apiece,  out  of  the  property  included  in  the  power,  they  would  not 
be  able  to  invalidate  the  exercise  of  the  power,  upon  the  ground 
that  some  of  the  objects  of  the  power  had  taken  nothing  under  the 
appointment.  See  Gainsford  v.  Dunn,  17  L.  R.  Eq.  405,  see  also 
Bench  v.  Biles,  4  Madd.  187;  Greville  v.  BrowJie,  7  Ho.  Lo.  Ca. 
089;  Francis  v.  Clemow,  Kay,  485;  Gyett  v.  Williams,  2  J.  &  H.  429. 

The  statute  as  to  illusory  appointments  (1  Will.  4,  c.  46)  has  a 
retrospective  operation  on  any  power  of  appointment  in  esse  at  the 
time  of  the  passing  of  the  Act,  but  executed  afterwards  (Beid  v. 
Reid,  25  Beav.  409,  480) :  it  does  not,  however,  make  valid  an  ap- 
pointment which  previous  to  the  Act  would  have  been  invalid,  in 
consequence  of  the  exclusion  of  certain  objects  of  a  power,  not  au- 
thorising an  exclusive  appointment:  Minchin  v.  I\Ii)ichin,  3  Ii\  Ch. 
Rep.  107. 

It  has  been  recently  held  by  Sir  G.  Jessel,  M.  R.,  disapproving  of 
a  dictum  in  Mincliin  v.  Minchin  (3  Ir.  Ch.  Rep.  107),  that  an  ap- 
pointment since  the  Illusory  Appointments  Act,  11  Geo.  4 
&  *1  Will.  4,  c.  46)  under  a  non  exclusive  power  of  an  [  *  409  ] 
entire  fund  unto  and  amongst  the  objects  "and  the  siu-- 
vivors  and  survivor  of  them,  and  if  only  one  should  sm-vive,  then 
unto  that  one"  is  valid;  In  re  Capron^s  Triists,  10  Ch.  D.  484. 

521 


*  470  ALEYN  V.  BELCHIER, 

The  reason  for  the  remarkable  alteration  of  the  law  by  the  Illu- 
sory Appointments  Act  insisting  upon  a  share,  however  small  be- 
incr  given  to  every  one  of  the  objects  of  the  power,  has  been  said 
by  one  learned  judge  (Lord  Hatherley)  to  have  been  that  the  inten- 
tion of  the  donee  of  the  power  to  all  the  objects  would  be  assured. 
See  Bulteel  v.  Plummtr,  6  L.  R.  Ch.  App.  162. 

The  consequence,  however,  according  to  another  learned  judge 
(Sir  G.  Jessel,  M.R.)  has  been  this,  that  where  the  power  is  non- 
exclusive, if  the  appointor  forgets  to  appoint  a  shilling  or  even  a 
farthing,  to  every  object  of  the  power,  the  appointment  is  bad  be- 
cause some  one  is  left  out,  and  his  Lordship  suggests  that  the  rea- 
sonable mode  of  altering  the  law  would  have  been  to  make  every 
power  of  appointment  exclusive,  unless  the  author  of  the  settle- 
ment had  pointed  out  the  minimum  share,  which  every  object  was 
to  get:   Gaiusford  v.  Dunn,  17  L.  R.  Eq.  407. 

This  suggestion  has  been  acted  upon  by  the  Legislature  in  a  re- 
cent Statute,  37  &  38  Vict.  c.  37  (passed  30th  July,  1874),  entitled 
An  Act  to  Alter  and  Amend  the  Law  as  to  Appointments  under 
Powers  not  Exclusive,  whereby,  after  reciting  that  by  deeds,  wills, 
and  other  instruments,  powers  are  frequently  given  to  appoint  real 
and  personal  property  amongst  several  objects  in  such  manner  that 
no  one  of  the  objects  of  the  power  can  be  excluded,  or  some  one  or  more 
of  the  objects  of  the  power  cannot  be  excluded,  by  the  donee  of  the 
poAver  from  a  share  of  such  property,  but  without  requiring  a  substan- 
tial share  of  such  property  to  be  given  to  each  object  of  the  power  who 
cannot  be  excluded;  and  that  instruments  intended  to  operate  as  ex- 
ecutions of  such  powers  are  frequently  invalid  in  consequence  of 
the  donee  of  the  power  appointing  in  favour  of  some  one  or  more 
of  the  objects  of  the  power  to  the  exclusion  of  the  other  or  others  or 
some  other  or  others  of  such  objects;  and  that  it  was  expedient  to 
amend  the  law  so  as  to  prevent  such  intended  appointments  fail- 
ing; it  is  enacted  that  no  appointment,  which  from  and  after  the 
passing  of  the  Act  should  be  made  in  exercise  of  any  power  to 
appoint  any  property  real  or  personal  amongst  several  objects,  should 
be  invalid  at  law  or  in  equity  on  the  ground  that  any  object  of  such 
power  had  been  altogether  excluded,  but  every  such  appoint- 
ment should  be  valid  and  effectual,  notwithstanding  that 
[*470]  any  one  or  more  of  the  objects  should  not  *  thereby  or 
in  default  of  appointment  take  a  share  or  shares  of  the 
property  subject  to  such  power  (sect.  1).  And  there  is  a  proviso 
that  nothing  in  the  Act  contained  should  prejudice  or  affect  any 
provision  in  any  deed,  will,  or  other  instrument  creating  any  power, 
which  should  declare  the  amount  or  the  snare  or  shares  from  which 
no  object  of  the  power  should  be  excluded,  or  some  one  or  more 
object  or  objects  of  the  power  should  not  be  excluded  (sect.  2). 

[Doctrine  of  Fraud  upon  a  Potver  Restated. — Trustees  may  have  a 
special  power  conferred  upon  them  in  the  shape  of  a  power  of  ap- 
522 


ALEYN  V.  BKLCIIIER.  *  470 

pointmcnt,  that  is,  a  power  to  bo  excrciKed  as  thoy  in  their  own  dis- 
cretion think  best.  This  power,  '"in  all  cases  must  be  construed  ac- 
cording^ to  the  intention  of  the  i)arty  creating  it,  if  such  intention 
is  compatible  with  the  rules  of  law,  and  such  intention  must  bo  de- 
termined from  the  instrument."     Perry  on  Trust,  Sec.  478. 

The  donee  of  the  discretionary  power  must  act  bonCi  fide  and  if 
he  makes  the  appointment  with  a  view  of  obtaining  the  fund  it  is  a 
fraud  on  his  power.  The  fact  that  the  promises  to  exercise  the 
power  in  a  certain  way  is  not  a  fraud  and  does  not  disqualify  him: 
Williams'  Appeal,  23  P.  F.  Smith,  249;  further,  the  courts  will  not 
infer  that  an  appointment  is  a  fraud  upon  a  power  unless  there  are 
such  cogent  facts  that  "it  cannot  reasonably  come  to  any  other  con- 
clusion. If  the  power  is  not  exercised  in  good  faith  and  for  the 
purpose  for  which  it  was  created,  its  exercise  equity  will  deem  to  be 
fraudulent  and  will  set  it  aside  upon  bill  filed  by  any  party  in  in- 
terest. The  same  rule  applies  to  appointments  made  through  un- 
due inliuence  over  the  appointee,  or  with  an  expectation  of  the  death 
of  the  appointee  and  a  succession  to  his  estate;  or  to  any  case  in 
which  the  motive  of  the  appointer  is  to  acquire  any  direct  or  indi- 
rect benefit  for  himself. 

The  appointment  will  also  be  considered  as  fraudulent  if  it 
made  for  the  benefit  of  a  stranger  and  not  for  the  object  of  the 
power. 

If  a  discretionary  legal  power  is  given  to  a  man  and  his  as- 
signs, the  assigns  or  any  one  claiming  under  them  by  operation 
of  law  may  execute  the  power:  Montague  v.  Davis,  14  Allen, 
369;  bxit  if  the  power  has  been  confided  to  the  man  himself  it  can- 
not be  claimed  by  his  assigns  or  anyone  else.  It  is  also  to  be  ob- 
served that  whatever  powers  a  trustee  may  possess,  if  the  trust  is 
before  the  court,  and  a  decree  has  been  made  the  powers  of  the 
trustees  are  thenceforth  so  far  changed  that  they  must  have  the 
sanction  of  the  court  for  all  their  acts   (Perry,  Sec.  474). 

The  creation  of  trusts  in  the  form  of  powers  occur  where  no 
positive  direction  is  given  that  the  trustee  shall  hold  for  the  par- 
ties interested,  but  he  is  authorized  to  give  them  an  interest  if  he 
sees  fit.  J 


523 


472  COUNTESS  OF  STRATIIMORE  V.  BOWES. 


[-471  ]  *  COUNTESS  OF  STRATHMORE  v.  BOWES. 


JIarc/i  2nd  &  Srcl  1789. 

[reported    1    VES.    JUN.    22.] 

\_S.  C.  on  the  first  hearing,  2  Bro.  C.  C.  345 ;  2  Cox  28,  affirmed,  appeal 
6  Bro.  P.  C.  A21,  Toml.  eel.] 

Fraud  on  JVIarital  Rights.] — A  tcovian,  pending  a  treaty  of  mar- 
riage ivith  A.,  settled  all  her  property  to  her  separate  use,  with  his 
approbation;  a  few  days  after,  B.,  by  stratagem,  induced  her  to 
marry  him,  the  day  after  she  first  thought  of  it :  B.  had  no  notice 
of  the  settlement.  The  settlement  was  established,  and  a  deed  of 
revocation  obtained  by  duress  set  aside.        * 

The  burthens,  to  ichich  a  husband  is  liable,  are  a  consideration  for 
his  marital  rights,  upon  which,  therefore,  fraud  may  be  committed. 

Conveyance  by  a  woman  under  any  circ^imstances,  and  even  the 
moment  before  marriage,  is  good,  primd  facie:  is  bad  only  if 
fraudulent,  as  where  it  is  made  pending  the  treaty,  without  notice 
to  the  intended  husband. 

Lady  Strathmore  being  seised  and  possessed  of  great  property, 
both  real  and  personal,  pending  a  treaty  of  marriage  with  Mr. 
Grey,  conveyed  all  her  real,  and  assigned  all  her  personal,  estate  to 
trustees  for  her  sole  and  separate  use,  notwithstanding  any  future 
coverture.  This  settlement  was  prepared  with  the  approbation  of 
Grey. 

A  few  days  after  the  execution,  hearing  that  Mr.  Bowes  had 
fought  a  duel  on  her  account  with  the  editor  of  a  newspaper,  who 
had  traduced  her  character,  she  determined  to  marry  him,  and  the 
marriage  took  place  the  next  day.  Bowes  had  not  notice  of  the 
settlement. 

There  were  two  bills:  an  original  bill  by  Lady  Strathmore,  to  set 

aside  a  deed  revoking  the  settlement,  as   having  been  ob- 

[  *472  ]   tained  by  duress;  and  a  cross  bill  by  Mr.  *  Bowes,  to  set 

aside  the  settlement,  as  against  the  rights  of  marriage,  and 

a  fraud  upon  him,  and  to  establish  the  deed  of  revocation. 

524 


COl'NTESS  OF  STRATIIMORK  V.  BOWES,  *  473 

An  issue  was  directed,  to  try  whether  the  deed  of  revocation  had 
been  obtained  by  duress;  and  the  verdict  in  the  Common  Pleas  was 
against  the  deed.  The  cause  coming  on  upon  the  equity  reserved, 
Mr.  Justice  Buller,  sitting  for  the  Lord  Chancellor,  decreed  in  fa- 
vour of  Lady  Strathmore,  and  dismissed  the  cross  bill  with  costs. 

It  came  on  again,  upon  the  petition  of  Mr.  Bowes,  for  a  rehearing 
and  reversal  of  that  decree  so  far  as  it  dismissed  the  cross  bill. 

Mr.  Richards,  for  Mr.  Bowes. — The  questions  is,  whether  this 
settlement,  made  before  marriage,  is  valid  or  not,  as  being  in  dero- 
gation of  the  common  rights  of  marriage.  A  wife,  by  the  mar- 
riage contract,  becomes  extinct,  from  the  nature  of  it,  for  several 
civil  purposes  with  regard  to  which  she  merges  in  the  husband.*  He 
becomes  liable  to  all  her  debts,  and  answerable  for  all  her  acts  that 
do  not  amount  to  felony;  and  even  for  that,  if  committed  in  "his 
presence;  because  her  mind  is  supposed  to  be  under  his  coercion.  In 
order  to  enable  him  to  answer  this,  he  has  by  the  law  all  her  pro- 
perty. It  is  absurd  to  say,  the  wife  shall  by  her  own  act  deprive 
the  husband  of  what  the  law  has  given  him.  It  was  not  decided  till 
lately,  that  a  legacy  to  a  wife  for  her  sole  and  separate  use  would 
have  been  good  without  the  interposition  of  trustees;  and  this  case 
is  much  stronger,  because  to  be  construed  more  strictly  than  a  de- 
vise; nor  can  the  interposition  of  trustees  make  any  difference,  be- 
cause it  cannot  alter  the  nature  of  the  thing.  As  to  his  not  having 
made  any  settlement  on  her,  many  marriages  are  made  without  any: 
and  in  this  case  it  could  not  be  necessary;  for  she  had  10,000/.  or 
12,000Z.  a  year,  a  great  estate  for  life,  and  much  personal  property. 
There  is  another  principle  very  material:  marriage,  by  the  law  of 
England,  gives  the  husband  the  whole  dominion  over  the  pro- 
perty, and  also  over  the  person  of  his  wife,  except  as 
*  to  murder;  for,  by  the  old  law,  he  could  not  be  punished  [  *  473  ] 
for  cruelty  towards  her.  The  civil  existence  of  the  wife 
merged  in  that  of  the  husband:  he  is  the  head  of  the  family;  to 
make  another  would  be  against  the  policy  of  the  law.  If  the  wife 
can  by  her  own  act,  against  the  consent  of  the  husband,  make  her- 
self independent  of  him,  it  will  destroy  that  subordination  so  neces- 
sary in  families,  which  is  analogous  to  that  in  the  state,  and  tends 
to  support  it;  for  if  Lady  Strathmore  is  right  in  this,  the  husband 
is  become  a  cipher  in  his  own  house;  for  he  cannot  educate  his 

525 


*  474  COUNTESS  OF  STRATPiMORE  V.  BOWES. 

children,  or  do  any  other  act,  which  by  law  he  has  a  right  to  do. 
The  deed  was  executed  on  the  10th  or  11th  of  January,  and  the 
marriage  took  place  upon  the  17th.  If  the  deed  had  been  meant 
fairly  in  contemplation  of  marriage,  the  husband  would  have  been 
a  party  to  it:  there  is  no  instance  to  the  contrary;  and  it  is  neces- 
sary, in  order  to  testify  the  consent  of  the  husband.  In  Howard  v. 
Hooker,  2  Ch.  Rep.  81,  a  settlement  by  the  wife,  before  marriage 
without  notice  to  the  husband,  was  set  aside.  In  Lance  v.  Norman, 
2  Ch.  Rep.  79,  a  bargain  entered  into  by  the  wife,  before  marriage, 
was  set  aside,  because  the  husband  was  not  a  party;  and  this  case  is 
stronger:  because  there,  the  wife  was  only  made  poorer;  but  here 
she  is  made  quite  independent  of  the  husband.  In  Carleton  v. 
Dorset,  2  Vern.  17,  the  estate  was  made  over,  before  marriage,  to 
trustees  without  privity  of  the  husband;  and  a  conveyance  was 
decjreed  to  the  six-clerk,  and  the  personal  property  to  be  paid  into 
Court  for  the  husband,  because  in  derogation  of  the  rights  of  mar- 
riage; and  in  Edmonds  v.  Dennington,  cited  in  the  foregoing  case, 
a  deed  of  settlement  made  before  marriage,  without  notice  to  the 
husband,  .was  set  aside.  In  Poulson  v.  Wellington,  2  P.  Wms.  535, 
Lord  King  said,  that  if  a  woman  before  marriage  settled  her  pro- 
perty, without  giving  notice  to  the  intended  husband,  it  would,  as 
to  him,  be  fraudulent  and  void.  In  Cotton  v.  King,  2  P.  Wms.  358, 
674,  Lady  Cotton,  widow,  had  ten  children  by  her  first  husband,  and 
before  the  second  marriage,  by  indenture  settled  part  of  her 
[  *474]  fortune  in  their  favour  *  (reserving,  however,  a  consider- 
able portion),  without  notice  to  the  husband.  King  filed 
a  bill  to  have  this  deed  delivered  up  to  him:  but  as  the  transaction 
of  making  the  deed  had  been  pu.blic;  as  she  had  so  many  children 
by  her  first  husband,  for  whom  it  was  reasonable  to  provide  before 
she  entered  into  a  second  marriage;  and  as  the  second  husband  was 
a  person  in  mean  circumstances,  and  had  received  a  good  fortune 
with  her;  and  as  she  had  reserved  something  to  herself,  King's  bill 
was,  for  these  reasons,  dismissed.  This  decision  shows,  that  if  it 
had  not  been  for  the  benefit  of  the  children  of  the  first  marriage, 
and  on  account  of  these  several  circumstances,  it  would  not  have 
been  good.  Upon  these  cases,  and  the  principle  of  the  thing,  this 
settlement  is  void,  as  being  in  derogation  of  common  right.  It  is 
to  be  observed  that  in  all  these  cases  something  was  reserved;  here 
there  is  nothing;  for  Lady  Strathmore  has  conveyed  all  her  real, 
and  assigned  all  her  personal,  property  to  trustees,  for  her  own  use; 
526 


COUNTESS  OF  STRATFIMOKE  ?.'.  BOWES.  *  475 

and  the  circumstance -of  appointing  trustees  -will  not  alter  tLe  na- 
ture of  the  thing,  though  it  drives  us  into  a  Coxirt  of  equity. 

Mr.  Mansfield,  Mr.  Hurdimje,  Mr.  Law,  and  Mr.  King,  for  Lady 
Strathmore. — ^Lady  Strathinore  is  in  possession  by  a  deed  to  trustees, 
giving  her  own  property  to  her  use.  It  was  done  in  contemplation 
of  marriage  with  another  person;  therefore  not  fraudulent  as  to  Mr. 
Bowes,  unless  any  deed  by  a  feme  sole,  by  which  she  disposes  of 
her  property,  shall  be  construed  to  be  fraudulent,  if  not  communi- 
cated to  any  future  husband.  Want  of  communication  is  the  only 
circumstance  that  can  be  alleged;  but  that  is  very  different  from 
concealment,  for  which  there  can  be  no  pretence  here.  It  is  true,  a 
man  by  marrying  a  woman  gains  a  dominion  over  her  property,  and 
in  a  great  degree  over  her  person,  though  perhaps  not  to  the  extent 
contended;  but  he  had  nothing  to  do  with  this  property,  for  it  was 
not  in  her  at  the  time  of  the  marriage,  having  been  previously  vested 
in  trustees:  and  as  every  man  knows  that  a  woman  may  settle  her 
property  so  that  a  future  husband  shall  not  be  able  to 
*  touch  it,  Mr.  Bowes  ought  to  have  enquired  about  it  be-  [  *  475  ] 
forehand.  There  is  no  preteuce  of  actual  imposition  upon 
him,  nor  even  upon  Grey.  The  deed  was  prepared  by  a  gentleman 
of  the  first  credit;  she  had  several  children  by  Lord  Strathmore;  she 
was  going  to  marry  Mr.  Grey,  and  make  this  previous  settlement  for 
her  children;  and  she  acted  meritoriously  and  honourably  in  so  do- 
ing. The  deed  was  with  Grey's  knowledge  and  under  his  direction; 
his  approbation  of  it  appeared  by  his  having  called  to  know  when 
it  would  be  ready,  and  to  hasten  it;  and  it  was  prepared,  though  not 
executed,  a  month  before  the  time  of  the  marriage,  therefore  not 
fraudulent  as  to  Mr.  Grey;  and  there  is  no  authority  for  vacating  a 
settlement  made  by  a  woman  for  the  protection  of  her  children  with- 
out fraud.  Mr.  Bowes  made  no  settlement  on  Lady  Strathmore; 
neither  did  King  upon  Lady  Cotton,  in  the  case  cited  (which  was 
one  of  the  grounds  of  the  decision  in  that  case),  though  Bowes  had 
some  fortune  by  a  former  wife.  He  took  Lady  Strathmore  as  she 
then  was,  with  what  she  then  had;  therefoi-e  there  is  nothing  fi-aud- 
ulent  or  that  can  entitle  him  to  relief  in  this  Court.  Knowing  that 
she  was  a  woman  subject  to  sudden  and  violent  impulses  of  gene- 
rosity, he  made  use  of  a  vile  artifice  to  obtain  her  by  means  of  a  sham 
duel  (for  it  is  in  every  stage  of  the  cause  admitted  to  have  been  so) 
with  the  proprietor  of  a  newspaper,  who  had  traduced  her;  and  the 
emotion  and  precipitation  which  he  caused  by  this  artifice,  was  the 

527 


*47G  COUNTESS  OF  STRATHMORE  V.  BOWES. 

cause  wbicli  prevented  the  communication  of  the  actual  situation  of 
her  fortiine.  After  this,  Mr.  Bowes  made  use  of  the  most  reproach- 
ful means  to  set  aside  this  deed:  and  the  verdict  was,  that  the  revo- 
cation was  obtained  by  violence.  He  would  not  have  done  this,  bad 
he  not  thought  the  deed  a.good  one.  The  reason  of  the  case  is  (nor 
is  there  a  dictum  to  the  contrary),  that  where  a  woman  about  to  marry, 
represents  herself  as  possessed  of  a  fortune  which  she  had  previously 
disposed  of,  this  Court  will  not  permit  the  husband  to  be  cheated. 
Howard  v.  Hooker,  to  which  all  the  cases  refer,  was  of  that 
[  *  476]  kind,  being  a  specific  fraud  *  upon  the  husband.  The  mar- 
riage had  been  broken  off,  and  was  brought  on  again  by  the 
interposition  of  friends,  upon  the  idea  of  the  husband  that  he  was  to 
enjoy  the  wife's  fortune,  in  consideration  of  which  he  made  a  settle- 
ment on  her  of  500Z.  a  year.  In  Lance  v.  Norman,  the  wife  before 
marriage  entered  into  a  recognizance,  concealed  from  the  intended 
husband,  and  the  object  of  it  was  to  enable  the  creditor,  who  was  her 
own  brother,  to  distress  the  husband;  and  they  had  made  an  attempt 
to  defraud  him  before,  by  getting  him  to  sign  a  deed  which  was  in 
Latin,  that  he  might  not  understand  it,  telling  him  it  was  only  a 
memorandum.  In  Carleton  v.  Dorset,  the  wife  conveyed  all  her  for- 
tune to  trustees  for  her  own  use,  with  permission  to  herself  to  ap- 
point, and  in  default  of  appointment,  to  her  own  right  heirs,  and 
afterwards  married:  here  the  case  was,  that  the  husband  had  assur- 
ance that  he  was  to  enjoy  the  estate  of  his  wife;  and  the  decree  was 
upon  the  ground  that  it  was  a  trust  for  her,  with  power  to  appoint; 
and  as  she  made  no  appointment,  it  was  resolved  to  be  a  trust  for 
her  husband.  Besides  in  that  case,  the  fortune  was  paid  into  court, 
and  a  reasonable  allowance  was  to  be  made  to  her.  It  has  been  re- 
marked, that  the  foundation  of  the  decree  in  Kiyig  v.  Cotton  was, 
that  it  was  to  provide  for  children,  which  has  been  said  to  be  the 
only  case  in  which  this  can  be  good:  but  the  settlement  on  children^ 
or  on  any  one  else,  will  not  make  any  difference;  the  question  is, 
what  right  the  husband  has;  if  he  has  any  right,  notwithstanding 
any  voluntary  disposition  without  notice  to  him,  because  he  was  de- 
ceived, the  manner  in  which  that  deceit  was  practised  will  make  no 
difference  with  respect  to  him;  for  the  ground  for  relief  must  be,  that 
he  was  cheated,  because  the  settlement  was  not  communicated  to  him. 
King  v.  Cotton  is  for  Lady  Strathmore;  for  Lady  Cotton  had  dis- 
posed of  her  fortune  so  as  to  put  it  quite  out  of  the  power  of  her  hus- 
band; and  yet  the  settlement  was  established.  As  to  Edmonds  v. 
528 


COUNTESS  OF  F/niATHMORH  V.  BOWKS.  ••  4TS 

Dennington  (i),  Mr.  Justice  BaW-.r  suspected  that  it  was  misreported 
ia  Veraon,  where  it  is  ouly  a  loose  note  cited  at  the  bar; 
and,  on  inspecting  the  *  register,  the  decree  turns  out  to  bo  [  *  477  J 
quite  different  from  that  report;  for  the  deed  was  estab- 
lished upon  the  ground  of  distinct  notice  to  the  husband;  and,  in 
that  case,  as  in  this,  the  settlement  was  all  her  property.  Thes^e 
cases,  therefore,  ouly  go  on  the  ground  of  fraud  of  the  husband,  of 
which  there  is  no  suggestion  here.  But  this  is  not  a  question  upon 
a  deed  executed  by  a  future  wife  pending  a  treaty  of  marriage  with 
a  future  husband;  nor  upon  a  deed  made  in  prejudice  generally  of 
marital  rights;  nor  of  a  settlement  by  a  husband,  by  which  he  pays 
for  his  future  power  over  the  fortune  of  his  wife.  Suppose  a  hus- 
band to  say  he  is  indifferent  as  to  the  fortune  of  his  wife,  in  order 
to  appear  disinterested ;  suppose,  having  a  fortune,  he  makes  no  set- 
tlement; and  suppose  the  marriage  instantaneous,  no  time  beintr 
given  for  communication  or  concealment,  is  it  enough  for  the  hus- 
band to  say,  his  secret  hope  was  disappointed?  The  only  pretence 
here  is,  that  he  expected  her  fortune  would  have  been  greater  than 
it  proved,  which  expectation  he  did  not  disclose.  To  make  this  deed 
valid,  is  only  to  put  a  safe-guard  in  her  hands  against  the  conse- 
quences of  an  improvident  marriage;  and  she  had  a  right,  while  sui 
juris,  to  baffle,  for  so  much,  what  would  otherwise  have  been  the 
marital  power  of  her  husband.  It  is  enough  for  us  to  say,  Mr.  Bowes 
was  not  cheated. 

Lord  Chancellor  Thuelow. — The  mere  question  seems  to  be, 
what  is  the  true  foundation  for  setting  aside  an  instrument  prima 
facie  good?  Can  less  be  imputed  to  it  than  fraud?  Or  can  it  be 
void  upon  the  notion  of  general  policy,  as  has  been  urged  by  Mr. 
Bowes?  If  not,  must  not  fraud  bo  imputed?  and,  if  so,  will  the 
circumstances  of  its  being  made  in  contemplation  of  marriage  affect 
it  with  fraud?  Suppose  a  relation  had  given  10,000/.  for  her  solo 
and  separate  use;  if  she  had  represented  it  as  her  own  absolutelv, 
80  that,  upon  a  marriage,  it  would  have  gone  to  her  husband,  this 
Court  would  have  compelled  the  trustees  to  give  it  to  the  husband, 
but  not  otherwise  [k) ;  nor  is  there  any  difference  between 
a  *  fortune  so  circumstanced  by  an  act  of  her  own,  or  of  [  *  478  ] 
the  donor.     Consider  what  will  be  the  effect  of  this  void 

(i)  And  see  1  My.  &  K.  621. 

yk)  See  Ashton  v.  M'Dougall,  o  Beav.  66. 

34   WHITK  ox    EQUITY.  529 


*  479  COUNTESS  OF  STRATHMORE  V.   BOWES. 

c"eed  of  revocation  ?  If  he  had  joined  with  her  to  revoke  that  settle- 
ment and  appoint  new  uses,  he  could  not  have  rescinded  that  after- 
wards; because  he  had  af&rmed  the  deed  by  actinor  upon  it.  If  he 
had  acted  honestly  upon  it,  as  in  the  case  I  have  put,  he  could  not 
have  set  that  aside;  his  counsel  are  to  show  that  he  may,  because 
he  has  acted  dishonestly  upon  it,  which  at  present  I  think  rather  a 
vain  attempt. 

Mr.  Partridge  was  to  have  argued  for  Mr.  Bowes,  by  way  of  re- 
ply, at  his  own  request,  but  could  not  attend. 

Lord  Chancellor  Thurlow.— I  never  had  a  doubt  about  this 
case.  If  it  is  to  be  considered  upon  the  ground  of  its  being  against 
a  rule  of  judicial  policy,  the  arguments  of  Mr.  Bowes  would  have 
had  gi'eat  weight.  The  law  conveys  the  marital  rights  to  the  hus- 
band, because  it  charges  him  with  all  the  burthens,  which  are  the 
consideration  he  pays  for  them;  therefore,  it  is  a  right  upon  which 
fraud  may  be  comitted.  Out  of  this  right  arises  a  rule  of  law  that 
the  husband  shall  not  bo  cheated  on  account  of  his  consideration. 

A  case  of  this  kind  came  before  me  a  few  days  ago  (Z).  A  woman 
adult,  about  to  marry  an  infant,  made  a  settlement,  in  contempla- 
tion of  that  marriage,  in  which  he  joined,  though  an  infant,  for  the 
purpose  of  expressing  his  consent.  As  it  was  upon  fair  considera- 
tion, and  no  fraud  to  draw  him  in  as  an  infant,  I  thought  the  cir- 
cumstance of  its  being  fair  would  bind  him,  though  as  an  infant, 
not  capable  of  consenting;  according  to*  which  I  held  the  settlement 
good,  as  she  was  capable  of  conveying;  and  as  it  was  a  public  and 
open  transaction,  with  the  consent  of  the  family,  and  consequently 
no  fraud,  though  his  being  privy  to  it  would  not  have  concluded 
him  from  any  rights  as  being  an  infant. 

A  conveyance  by  a  tcife,  ivhatsoever  inay  be  the  circumstances, 
and  eveyi  the  moment  before  the  marriage,  is  primd 
[  *  479  ]  *  facie  good,  and  becomes  bad  only  upon  the  imputation  of 
fraud.  If  a  icoman,  during  the  course  of  a  treaty  of  mar- 
riage with  her,  makes,  ivithotit  notice  to  the  intended  husband,  a 
conveyance  of  any  part  of  her  property,  I  should  set  it  aside,  though 
good  primd  facie,  because  affected  ivith  that  fraud. 

As  to  the  morality  of  the  transaction,  I  shall  say  nothing  to  that. 
They  seem  to  have  been  pretty  well  matched.  Marriage  in  general 
seems  to  have  been  Lady  Strathmore's  object:  she  was  disposed  to 
\  (0  Slocombe  v.  Glubb,  2  Bro.  C.  C.~545! 

530 


COUNTESS  OF  STKATIIMORE  V.  BOWES.  *  480 

man-y  anybody,  bat  not  to  part  with  her  fortune.  This  settlement 
is  to  be  considered  as  the  effect  of  a  lucid  interval,  and,  if  there  can 
be  reason  in  madness,  by  doing  this  she  discovered  a  spark  of  un- 
derstanding. 

.  The  question  which  arises  upon  all  the  cases  is,  whether  the  evi- 
dence is  sufficient  to  raise  fraud.  Even  if  there  had  been  a  fraud 
upon  Grey,  I  would  not  have  permitted  Bowes  to  come  hero  to  com- 
plain of  it.  But  there  was  no  fraud,  even  upon  Grey,  for  it  was 
with  his  consent;  and  so  I  cannot  distinguish  it  from  a  good  limita- 
tion to  her  separate  use.  Being  about  to  mairy  Grey,  she  made  this 
settlement  with  his  knowledge;  and  the  imputation  of  fraud  is,  that 
having  suddenly  changed  her  mind  and  married  Mr.  Bowes,  in  the 
hurry  of  that  improvident  transaction  she  did  not  communicate  it  to 
him;  but  there  was  no  time,  and  could  be  no  fraud,  which  consists 
of  a  number  of  circumstances.  It  is  impossible  for  a  man  marry- 
ing in  the  manner  Bowes  did,  to  come  into  equity  and  talk  of  fraud. 
Therefore  the  decree  must  be  affirmed,  with  costs;  but  let  him  have 
all  just  allowances  as  to  what  ho  paid  when  in  receipt  of  the  pro- 
fits, and  as  to  the  annuities,  which  are  declared  not  to  be  disturbed 
by  the  decree. 


In  the  well-known  case  of  Sfrathmore  v.  Bowes,  the  rule  upon 
which  Courts  of  equity  act  in  setting  aside  a  settlement  made  by  a 
woman  of  her  own  property  previous  to  marriage,  in  violation  or 
fraud  of  the  marital  rights  of  her  intended  husband,  is  well  laid  down 
by  Lord  Thurlow.  "  A  conveyance  by  a  wife,"  observes 
his  *  Lordship,  "whatsoever  may  be  the  circumstances,  [  *  480  ] 
and  even  the  moment  before  the  marriage,  is  prima  facie 
good,  and  becomes  bad  only  upon  the  imputation  of  fraud.  If  a 
woman,  during  the  course  of  a  treaty  of  marriage  with  her,  makes, 
without  notice  to  the. intended  husband,  a  conveyance  of  any  part  of 
her  property,  I  should  set  it  aside,  though  good  prima  facie,  be- 
cause 'effected  with  that  fraud."  [See  Freeman  r.  Hartman,  45 
111.  57;  Wilson  v.  Daniels,  13  B.  Mon.  351;  Cheshire  r.  Pavne,  16 
B.Mon.  618;  Robinson  r.Buck,  21  P.  F.  Smith,  3'J2;  Duncan's  Ap- 
peal, 7  Wright  (Fa.),  67.] 

The  decision,  however,  in  Strathmore  v.  Boices,  does  not  come 
within  the  principle  of  those  cases  in  which,  according  to  the  rule  as 
laid  down  by  Lord  Thiirlou;  a  Court  of  equity  would  set  aside  a 
settlement  of  a  woman's  property,  made  by  her  previous  to  marriage; 
for  it  will  be  observed,  that  the  settlement  was  made  by  Lady 
Strathmore  with  the  consent  of  Grey,  her  then  intended  husband, 
and  not   during   the   course  of  a  treaty  of  marriage  with  Bowes, 

531 


*  J-Sl  COUNTESS  OF  STRATIIMORE  V.  BOWES. 

-0-hom  sbe  afterwards  married,  and  it  was,  thorefore,  not  a  fraud 
upon  hira.  The  settlement,  to  use  Lord  Thurloid's  words  was  prima 
facie  good,  and  there  was  no  imputation  of  fraud  to  render  it  bad. 
[If  a  man  or  woman  who  is  on  the  point  of  marriage,  privately  con- 
veys away  his  or  her  property  for  the  purpose  of  depriving  the  in- 
tended husband  or  wife  of  the  legal  rights  and  benefits  arising  frorfi 
such  marriage,  equity  will  avoid  such  a  conveyance,  or  compel  the 
person  taking  it  to  hold  the  property  in  trust  or  subject  to  the  rights 
of  the  defrauded  husband  or  wife:  Perry  on  Trust,  sec.  213;  Smith 
V.  Smith,  2  Halst.  Ch.  515;  Waller  v.  Armstead,  2  Leigh.  11; 
Tucker  v.  Andrews,  13  Me.  124;  Logan  v.  Simmons,  3  Kich  Eq. 
404;  Duncan's  Appeal,  43  Pa.  St.  67;  Linker  v.  Smith,  4  Wash,  224.] 
"■  Strathmore  v.  Bowes"  observes  Lord  Loughborough,  "went  upon 
this,  that  the  deed  was  honest  and  proper,  being  made  in  contem- 
plation of  a  marriage  with  another  person,  and  with  the  consent  of 
that  person:"  Ball  v.  Montgomery,  2  Ves.  jun.  194;  see,  also, 
McDonnell  v.  Hesilridge,  16  Beav.  346.  It  is  necessary,  therefore, 
for  a  person  impeaching  a  settlement,  to  prove  that,  at  the  time  of 
its  execution,  he  was  the  then  intended  husband,  otherwise  it  will 
not  be  set  aside;     England  v.  Downs,  2  Beav.  522. 

It  is  clearly  settled,  that  if  a  woman,  during  a  treaty  for  marriage, 
holds  herself'out  to  her  intended  husband  as  entitled  to  property, 
which  will  become  his  upon  the  marriage,  and  then  makes  a  settle- 
ment of  it  without  his  knowledge  or  concurrence,  actual  fraud  will 
be  imputed  to  her,  and  the  settlement  will  be  set  aside  in  a  Court 
of  equity:  England  v.  Doivns,  2  Beav.  528;  see  also  Hoivard  v. 
Hooker,  2  Ch.  Eep.  81 ;  Carleion  v.  The  Earl  of  Dorset,  2  Vern.  17; 
S.  a,  2  Cox,  33.  .  [Kline  v.  Kline,  7  P.  F.  Smith,  120;  Logan  v. 
Simmons,  3  Ired.  Eq.  487.] 

It  was  observed  by  Mr.  Justice  Buller,  when  Strathmore  v.  Bowes, 
was  before  him,  that  "  Fraud  consists  in  falsely  holding  out  that  a 
woman  has  an  estate  unfettered  and  that  the  husband  will  be  of 
course  entitled  to  it.  No  case  has  yet  established,  that  all  convey- 
ances by  a  wife  before  marriage  are  void,  merely  because  not  com- 
municated to  the  husband:"  2  Bro.  C.  C.  350;  2  Cox,  29.  And 
again,  he  says,  "  It  is  necessary  to  show  other  facts,  and  that  the 
husband  is  actually  deceived  and  misled;  and  that  the  bare  con- 
cealment is  not  sufficient:"  2  Cox,  30.  These  dicta,  how- 
[  *  481  ]  ever,  *  of  Mr.  Justice  Buller  can  scarcely  be  supported,  al- 
though there  have  been  some  cases  in  which,  under  pecu- 
liar circumstances,  it  has  been  held  that  a  bare  concealment  by  a 
woman  from  her  intended  husband,  of  a  gift  or  a  settlement  of 
part  of  her  property  made  during  the  treaty  for  a  marriage,  was  not 
sufficient  evidence  of  fraud,  so  as  to  render  the  settlement  void  as 
against  the  husband.  Thus,  in  Thomas  v.  TVilliams,  Mos.  Ill,  a 
woman,  during  a  treaty  of  marriage,  released  a  legacy  to  which  she 
was  entitled,  without  the  knowledge  of  her  husband.  Lord  King, 
however,  refused  to  set  aside  the  release,  because  it  did  not  appear 
532 


COUNTESS  or  STRATIIMOUi:  /•.  DOWES.  *  4S2 

that  ho  over  inquired  after  the  h'l^acy.  So  also  in  De  Mandevillfi  v. 
Cr(>ni])f()n,  1  Y.  &  B.  354,  a  dauirhter,  after  instructions  ^vere  {^iven 
for  her  marriage  settk'mont,  by  which  she  assigned  all  monies, 
debts,  bills,  bonds,  notes,  and  other  securities  for  money,  and  chat- 
tels real,  and  other  chattels,  and  personal  estate,  to  trustees,  upon 
trusts  under  which  her  intended  husband  took  only  a  partial  and 
contingent  interest,  without  his  knowledge  cancelled  a  promissory 
note  for  20(X)Z.,  which  had  been  given  to  her,  without  consideration, 
about  seventeen  years  before,  by  her  mother,  then  a  widow,  as  a 
provision  in  case  she  should  marry  again;  Lord  Eldon  held,  that 
the  husband  was  entitled  to  no  relief  with  regard  to  the  note.  '"My 
opinion,"  observed  his  Lordship,  "is  that  the  marriage  was  not 
upon  any  representation  as  to  the  amount  of  the  property,  that  it 
should  bo  in  no  way  diminished,  or  that  this  note  should  make 
part  of  the  settlement;  and  I  should  go  beyond  any  precedent  by 
holding  that  here  Avas  a  misrepresentation  leading  to  marriage, 
which  was  either  fraudulently  or  substantually  defeated  by  Avhat 
took  place  afterwards  with  reference  to  this  note." 

However,  in  Goddard  v.  Snow,  1  Russ.  485,  a  woman,  ten  months 
before  marriage,  but  after  the  commencement  of  that  intimate  ac- 
quaintance with  her  future  husband  which  ended  in  marriage,  made 
a  settlement  of  a  sum  of  money  which  he  did  not  know  her  to  bo 
possessed  of.  The  marriage  took  place,  she  concealing  from  him  both 
her  right  to  the  money  and  the  existence  of  the  settlement.  Ten 
years  afterwards  she  died,  and  after  her  death  the  husband  filed  a 
bill  to  have  the  money  paid  to  him.  It  was  argued,  on  behalf  of 
the  defendants,  that,  as  the  husband  did  not  know  of  the  existence 
of  the  sum  of  money,  and  was,  therefore,  not  induced  to  contract 
the  marriage  on  the  notion  that  it  would  be  subject  to  his  marital 
rights,  no  fraud,  such  as  the  authorities  held  to  bo  necessary,  had 
been  committed  ;  that  there  was,  at  the  utmost,  only  concealment, 
and  that  concealment  alone  was  not  sufficient  to  avoid  a 
settlement  *  confessedly  valid  at  law.  Lord  Gifford,  M.  R.,  [  *  482  ] 
however,  held  that  the  settlement  was  void  against  the  hus- 
band, as  a  fraud  upon  his  marital  rights;  and  his  Lordship  said,  that 
the  opinion  of  Lord  Thurlotc,  in  Strathmore  v.  Boices,  was,  that  if  a 
woman,  contemplating  marriage  Avith  an  individual,  made  a  settle- 
ment of  her  pro[)erty  on  herself,  reserving  to  herself  the  dominion  over 
it,  and  concealed  that  settlement  from  her  husband,  the  settlement 
was  a  fraud  on  his  marital  rights,  wliicli  he  was  entitled  to  avoid. 
See  St.  George  v.  Wake,  1  ]\Iy.  &  K.  022,  where  Lord  Brougliai)i 
says,  that  the  principle  was  carried  further  in  Goddard  v.  S)iou'  than 
in  any  other  case.  See  also  Downes  v.  Jennings.  32  Beav.  2U0  ; 
Prideaux  v.  Lonsdale,  4  Giff.  159;  1  De  G.  Jo.  &  Sm.  433;  Chambers 
V.  Crabbe,  34  Beav.  457.  [And  such  a  settlement  will  be  set  aside 
by  a  chancellor  on  the  application  of  the  husband:  William  r.  Carle, 
2'  Stock.  Ch.  543  ;  Ferry  v.  Hopkins,  1  Hill.  Ch.  1  ;  Tucker  v. 
Andrews,  13  Me.  124.] 

533 


*  483  COUNTESS  OF  STRATIIMOEE  V.  BOWES. 

It  has  been  supposed  that  a  settlement  by  a  widow  upon  her 
childi-en  by  a  former  marriage,  even  if  made  during  the  treaty  for 
a  second  marriage,  without  the  knowledge  of  her  intended  husband, 
is  valid,  because  the  object  of  the  settlement,  it  has  been  said,  is 
meritorious.  Hun*-  v.  Matfheivs,  1  Vern.  408,  and  King  v.  Cotton,  2 
P.  Wms.  674,  Mos.  259,  have  been  cited  as  supporting  the  proposi- 
tion; it  appears,  however,  by  an  extract  from  the  decree  in  Mr. 
Raithby's  edition  of  Vernon,  that  the  husband,  in  Hunt  v.  Mhtthews, 
conf^ented  to  the  settlement  being  made  by  his  intended  wife  upon 
her  children  by  a  former  marriage;  and  in  King  v.  Cotton,  the  settle- 
ment was  made  by  Lady  Cotton  upon  the  children  of  a  former  mar- 
riage, previous  to  her  entering  upon  a  treaty  for  a  second  viarriage. 
These  cases,  therefore,  only  decide  that  a  settlement  is  valid  if 
made  by  a  woman  upon  her  children  by  her  former  marriage,  either 
with  the  consent  of  the  intended  husband,  or  without  his  consent 
or  knowledge,  if  mnde  previous  to  the  treaty  for  marriage;  but  it  is 
conceived  that  a  provision  for  children  would  not  render  a  settle- 
ment valid  which  without  it  would  be  fraudulent;  for  although  in 
the  execution  of  a  settlement,  so  far  as  it  makes  provision  for  her 
children,  a  woman  may  perform  a  moral  duty  towards  her  children, 
she  has  no  right  to  act  fraudulently  towards  her  husband;  and  she 
can,  in  such  circumstances,  only  reconcile  all  her  moral  duties  by 
making  a  proper  settlement  on  herself  and  her  children,  with  the 
knowledge  of  her  intended  husband.  See  England  v.  Doivn,  2  Beav. 
528,  529;  in  which  case,  however,  the  settlement  made  by  a  Avidow 
upon  herself  and  the  children  of  a  former  marriage  was  held  not  to 
be  fraudulent,  because  it  was  not  proved  that  the  person  she  after- 
wards married  was  at  the  time  of  the  execution  of  the  settlement, 

"/ler  then  intended  husband.'''' 
[  *  483  J  The  mere  fact  that  the  intended  *  husband  was  ignorant 
that  his  wife  had  any  property,  or  that  she  has  practised 
no  actual  deception  upon  him,  will  not,  it  seems,  be  sufficient  to 
prevent  the  Court  from  setting  aside  a  settlement  made  in  fraud  of 
the  marital  right.  See  Taylor  v.  Pugh,  1  Hare,  608,  in  which  case, 
however.  Sir  James  Wigram,  V.-C,  decided  against  the  husband 
upon  other  grounds. 

But  a  gift  or  settlement,  by  a  woman,  of  her  property,  during 
the  treaty  for  marriage,  will  not  be  set  aside,  if  the  husband  knew 
of  the  gift  or  settlement  before  the  marriage :  St.  George  v.  TFaA-e,!  My. 
&  K.  610;  Ashtonv.  M'Dougall,  5  Beav.  56;  Griggs  \.  Staplee,  2  DeG. 
&  Sm.  472;  Wrigley  v.  Sivainson,  3  De  G.  &  Sm.  458.  See  1  My.  &  K. 
619.  [The  rule  under  consideration  will  not  apply  to  property  of 
the  wife  to  which  the  marital  rights  would  not  have  attached,  as 
where  the  woman  has  a  life  estate  to  her  separate  use  to  the  exclu- 
sion of  any  future  husband,  with  an  absolute  poAver  of  appoint- 
ment by  deed  or  will,  and  she  exercises  the  power  before  marriage 
by  the  execution  of  a  settlement  on  herself:  Bispham's  Eq.  sec. 
254;  Cole  v.  O'Neill,  3  Md.  Ch.  174.] 
534 


COUNTi;SS  OF  STRATHMORE  V.  BOWES.  *  484 

The  seduction  by  a  man  of  his  intended  wife  may  be  a  reason 
why  a  Court  of  Equity  should  not  set  aside  a  setth>ment  made  by 
her  before  marriage.  Thus,  in  Taylor  v.  Pugh,  1  Hare,  COS,  where 
a  man  had  induced  his  intended  wife  to  cohabit  with  him  previously 
to  marriage,  Sir  J.  Wiyram,  V.-C,  refused  to  set  aside  a  settlement 
of  her  property,  although  executed  without  his  knowledge,  during 
the  treaty  for  the  marriage,  because  her  husband,  before  the  mar- 
riage, had  put  it  out  of  the  power  of  the  wife  effectually  to  make 
any  stipulation  for  the  settlement  of  her  property,  by  his  conduct 
towai'dsher.  "Ketirement,"  said  his  Honor,  "from  the  marriage 
on  her  part  was  impossible.  She  must  have  submitted  to  a  marri- 
age with  her  seducer,  even  although  he  should  have  insisted  on  re- 
ceiving and  spending  the  whole  of  her  fortune."  But  see  Doivnes 
V.  Jennings,  32  Beav.  290. 

The  concurrence  of  the  husband  in  making  a  settlement  will  pre- 
clude him  from  taking  any  objections  to  it;  but  not,  it  seems,  if  he 
be  a  minor."  See  Kuigsinan  v.  Kingsman,  G  Q.  B.  D.  122;  Nelson 
v.  Stocker,  4  De  G.  &  Jo.  458.  The  case  of  Slocombe'w  Glubb,  re- 
ported in  2  Bro.  C.  C.  545,  and  referred  to  by  Lord  Thurlou;  in 
the  principal  case,  was,  according  to  Lord  *S'eZ6orn6,  decided  against 
the  husband,  who  had  concurred  in  the  settlement  while  a  minor 
upon  the  ground  "that  as  he  had  taken  a  benefit  under  the  settle- 
ment, he  could  not  reject  it  in  part  and  accept  it  in  part :"  Kingsman 
V.  Kingsman,  6  Q.  E.  D.  125. 

As  to  settlements  made  under  The  Infants  Settlements  Act  (18  & 
19  Vict.  c.  43),  see  note  to  Eyre  v.  Countess  of  SJiaffsbury,  Yol.  II. 
post. 

In  a  recent  case,  however,  a  settlement  made  by  a  woman  of  her 
personal  property' after,  her  engagement  to  be  married,  was  set 
aside  at  the  suit  of  the  husband,  although  he  was  told  before  the 
marriage  that  she  had  executed  a  settlement  affecting  her  prop- 
erty, it  appearing  that  neither  she  nor  her  husband  was 
accurately  *  informed  of  the  nature  and  effect  of  the  [  *  484  ] 
trusts  of  the  settlement:  Prideaux  v.  Lonsdale,  4  Giff. 
159,  1  De  G.  Jo.  &  Sm.  433. 

If  a  hv\sband  acquiesces  in,  or  confirms,  a  settlement,  he  will  not 
afterwards  bo  allowed  to  dispute  it:  Maber  v.  Hobbs,  2  Y.  &  C. 
Exch.  Ca.  317;  England  v.  Downs,  2  Beav.  535;  Ashtonv.  M'Dou- 
gall,  5  Beav.  56;  Grazebrook  v.  Percical,  14  Jur.  1103;  Loader  \. 
Clarke,  2  Mac.  &  G.  382.  But  in  Downes  v.  Jennings,  32  Beav. 
290,  523,  it  was  held  that  delay  in  instituting  a  suit  for  two  and  a 
half  years  after  the  discovery  by  the  husband  of  the  settlement  did 
rot  operate  as  a  bar  to  the  relief  sought.  [A  settlement  will  not 
be  set  aside  if  the  intended  husband  has  notice  of  it  at  any  time, 
no  matter  how  short  the  interval  may  be,  before  the  marriage: 
Cheshire  v.  Payne,  16  B.  Mon.  618;  Ferry  v.  Hopkins,  1  Hill, 
Ch.  1.] 

It  seems,  however,  that  the  representatives  of  a  husband  after 

535 


*  485  COUJSITESS  OF  STRATHMORE  V.  BOWES. 

his  death  have  no  equity  against  the  wife,  if  he  dies  without  hav- 
ing  discovered  the  fraud  on  his  marital  rights:  Grnzebrookv.  Per- 
cival,  14  Jur.  1103. 

If  a  woman  gives  a  security  to  a  volunteer,  prior  to  marriage, 
without  the  consent  of  the  intended  husband,  it  may  be  set  aside 
by  him.  Thus,  in  Lance  v.  Norman,  2  Ch.  Eep.  79,  the  wife  of 
Lance,  the  plaintiff,  the  day  before  her  marriage,  was  persuaded  to 
enter  into  a  recognizance  of  2000/.  without  defeazance,  to  her 
brother,  the  defendant,  without  the  privity  or  consent  of  the  plain- 
tiff. The  Court,  being  assisted  by  the  judges,  held,  that  the  recog- 
nizance was  entered  into  whereby  to  defraud  the  plaintiff;  and  de- 
creed it  to  be  sel  aside  and  vacated  on  the  record  thereof,  and  granted 
a  perpetual  injunction  against  it. 

But  where  a  woman,  about  to  marry,  gave  a  bond  for  valuable 
consideration,  although  without  her  intended  husband's  knowledge, 
it  was  held  by  Lord  Hardioicke,  that  the  husband  could  not  be  relieved 
against  it.  "If,"  observed  his  Lordship,  "a  woman  about  to  marry 
parts  with  part  of  her  property,  or  gives  a  security  or  assigument, 
they  are  relievable  against  in  this  court;  but  where  a  debt  is  con- 
tracted for  valuable  consideration,  though  concealed  from  the  hus- 
band, it  is  no  fraud  on  the  marriage.  But  concealment  of  such 
securities,  or  debts  is  not  to  be  encouraged;"  Blanchett  v.  Foster,  2 
Ves,  264;  see  also  Lleivellin  v.  Cobbold,  1  Sm.  &  Giff.  376. 

A  secret  settlement  made  by  a  woman  whilst  under  a  treaty  for  mar- 
riage, though  liable  to  be  set  aside  in  equity,  was  held,  previous  to 
the  Judicature  Acts,  not  to  be  necessarily  void  in  a  court  of  law: 
Doe  d.  Richards  v.  Letvis,  11  C.  B.  1035. 

It  seems  to  be  doubtful  how  far  Courts  of  equity  will  interfere  in 
favour  of  women,  against  secret  acts  of  the  husband  immediately 
before  marriage  to  deprive  them  of  their  right  to  dower.  It  is,  how- 
ever, said  by  Lord  C.  B.  Gilbert,  that  a  conveyance  in  trust  privately 
made  by  the  husband  on  the  eve  of  marriage,  for  the  purpose  of 
barring  dower,  would  be  decreed  fraudulent,  as  being  de- 
[  *  485  ]  signed  to  dejOTve  *the  wife  of  the  provision  given  her  by 
the  Common  law:  Lex  Prset.  267;  1  Bright,  H.  &  W.  356; 
and  see  Drury  v.  Drurij,  Wilmot's  Opinions,  177;  4  Bro.  C.  C.  506, 
n.  Lord  Harchcicke,  however,  treats  it  as  clear,  "that  if  a  man,  be- 
fore marriage,  conveys  his  estate  privately,  without  the  knowledge 
of  his  wife,  to  trustees,  in  trust  for  himself  aod  his  heirs  in  fee,  that 
will  prevent  dower:"  Stvannock  v.  Lyford,  Co.  Litt.  108,  n.  1;  and 
see  Banks  v.  Sutton,  2  P.  Wms.  700.  [The  rule  which  forbids  the 
disposition  of  property  by  a  woman,  in  contemplation  of  marriage 
to  the  injury  of  the  right  of  her  intended  husband,  has  also  been  ap- 
plied to  the  case  of  a  man  conveying  his  property  away  in  fraud 
of  an  intended  wife:  Baird  v.  Stearne,  15  Phila.  339;  Cambell's 
Appeal,  30  P.  F.  Smith,  309;  Petty  v.  Petty,  4  B.  Mon.  215;  Smith 
V.  Smith,  2  Halst.  Ch.  515.] 

It  has  also  been  observed  that  the  reasons  for  which  it  has  been 
530 


COUNTESS  OF  STRATIIMOIIE  V.  BOWES.  *  485 

held  that  a  conveyance  privately  made  by  a  woman  dnriritr  a  treaty 
of  marriage  ispr///((?/aci«  fraudulent  and  void,  do  not  ai)[)ly  ^vith 
e(pial  force  to  a  conveyance  made  under  similar  circumHtances  by 
the  intended  husband;  because  estates  are  now  most  commonly 
conveyed  or  settled  so  as  to  prevent  dower  from  attaching,  it  is  not 
necessarily  to  be  presumed  that  the  marriage  was  contracted  by  the 
woman  in  the  expectation  of  becoming  entitled  to  that  provision, 
unless  it  appears  that  representations  to  that  effect  were  made  to 
her  (1  Bright,  H.  &  AV.  357);  and  perhaps  these  reasons  would  ap- 
ply more  forcibly  in  the  case  of  women  married  since  the  Dower 
Act  (3  &  4  Will.  4,  c.  105)  (which  puts  dower  entirely  in  tlie  power 
of  the  husband)  came  into  operation.  See  also  M'Keogh  v. 
AVKeogh,  4  I.  Eq.  338. 

For  a  decree  on  setting  aside  a  settlement  as  a  fraud  on  marital 
rights,  and  trusts  of  a  new  settlement  declared,  see  Seton  on  De- 
crees, 1368,  4th  ed. 

It  is  presumed  that  a  woman  about  to  be  married,  who  had 
availed  herself  of  the  powers  conferred  upon  her  by  the  Married 
Women's  Property  Act,  1870  (33  &  34  Vict.  c.  03),  ss.  3,  4,  5,  to  in- 
vest in  the  funds,  joint  stock  or  other  companies,  or  in  societies 
duly  registered,  certified  or  enrolled,  would  have  come  within  the 
rule  laid  down  in  Straihmore  v.  Bowes,  if  she  had  not  obtained  the 
concurrence  of  her  intended  husband.  [If  the  disposition  of  the 
property  has  been  made  for  a  valuable  consideration,  it  will  be  sus- 
tained. The  true  rule  appears  to  be,  that  the  consideration  must  bo 
valuable  and  that  a  settlement  made  upon  a  meritorious  considera- 
tion will  not  be  good  as  against  the  husband,  even  if  made  for  the 
benefit  of  children  by  a  former  marriage.] 

But  the  Married  Women's  Property  Act,  1870  (33  &  34  Yict.  c. 
93),  and  The  Married  Women's  Property  Amendment  Act,  1874,  ' 
have  been  repealed,  except  as  to  acts  done  or  rights  acquired  there- 
under, by  the  Married  Women's  Property  Act,  1882  (45  &  40  Yict. 
c.  75),  8.  22. 

It  seems  that  as  a  woman  married  on  or  after  the  1st  of  Jan.  1883, 
will,  under  the  Married  Women's  Property  Act,  1882  (45  &  40  Yict. 
c.  75),  be  entitled  to  her  property  at  and  after  her  marriage  to  her 
separate  use,  the  right  of  the  husband  to  set  aside  a  settlement 
made  by  the  wife  under  the  rule  laid  down  in  Sfratlnnore  v.  Boms, 
can  no  longer  be  enforced,  since  the  marital  right  of  the  husband 
to  protect  Avhich  the  rule  was  enforced,  has  by  the  last-mentioned 
Act  been  almost  in  effect  abolished.  See  note  to  Hubue  y.  Tenant, 
post. 

\_Doct)'ine  of  Fraud  on  Marital  Rights  Restated. — If  a  woman 
who  is  entitled  to  property  enters  into  a  promise  for  marriage  and 
during  the  arrangement  represents  to  her  intended  husband  that 
she  is  so  entitled,  and  that  upon  their  marriage  he  will  become  en- 
titled Jure  mariti,  and  if  during  the  treaty  she  conveys  away  the 

537 


*  486  LADY  ELIBANK  V.  MONTOLIEU. 

property,  either  for  the  benefit  of  a  third  person,  or  to  secure  it  for 
her  separate  use,  it  is  plain  that  an  actual  fraud  has  been  practised 
on  the  husband. 

"  It  is  true  that  the  non-acquisition  of  the  property  is  no  disap- 
pointment, but  his  legal  right  is  defeated:  "  Adams  on  Equity,  Sec. 
181. 

It  is  for  the  court  to  determine  in  each  individual  case,  having 
reo-ard  to  the  condition  of  the  parties,  and  the  other  attendant  cir- 
cumstances, whether  a  transaction  complained  of  should  be  treated 
as  fraudulent.  If  an  intended  husband  has  no  knowledge  of  the 
particular  property  conveyed,  and  the  negotiations  for  the  marriage 
have  no  reference  to  that  particular  property,  its  conveyance  is  not 
fraudulent  unless  it  was  actually  intended  as  a  fraud  upon  him.  In 
all  antenuptial  contracts  there  must  be  the  utmost  good  faith  be- 
tween the  parties,  and  a  grossly  disproportionate  settlement  may  be 
evidence  of  a  fraudulent  concealment  ] 


[*486]  *LADY  ELIBANK  v.  MONTOLIEU.     ■ 

April  IGtJi,  19th,  1799.     Feb.  19t7i,  1801. 
[reported  5  vEs.  737. j 

Wife's  Equity  to  a  Settlement.] — Upon  the  bill  of  a  married 
woman,  entitled  to  a  share  of  the  personal  estate  as  one  of  the 
next  of  kin  of  the  intestate,  against  her  husband  and  the  ad- 
ministrator, the  latter  claiming  to  retain  toivards  satisfaction  of  a 
debt  by  bond  from  the  plaintiff'' s  husband  to  him,  it  icas  declared 
he  teas  not  entitled  to  retain :  but  that  the  plaintiff's  share  was 
subject  to  a  further  provision  in  favour  of  her  and  her  children, 
the  settlement  on  her  marriage  being  inadequate  to  the  fortune 
she  then  possessed;  and  it  ivas  referred  to  the  Master  to  see  a 
proper  settlement  made  on  her  and  her  children,  regard  being  had 
to  the  extent  of  her  fortune  and  the  settlement  already  made  upon 
her. 

In  1795,  Lady  Cranstown  died  intestate,  possessed  of  large  personal 
property,  leaving  two  brothers  and  two  sisters  her  next  of   kin. 
538 


LADY  ELIBANK  V.  MONTOLIEU.  *  487 

Lewis  Montoliou,  one  of  her  brothers,  took  out  letters  of  adminis- 
tratiou  to  her. 

The  bill  was  filed  by  Lady  Elibank,  one  of  the  sisters,  against  her 
husband  Lord  Elibank  and  against  MontoYien,  jjraying  an  account 
of  the  plaintiff^s  share,  and  that  it  may  be  settled  on  her  and  her 
family. 

The  defendant  Montolieu,  by  his  answer,  claimed  to  retain  Lady 
Elibank's  share,  towards  satisfaction  of  the  debt  duo  to  him  from 
Lord  Elibank  by  two  bonds — one  dated  the  Slst  of  May,  1783,  for 
12,217/.  9.S.  9d.:  the  other,  dated  the  14th  November,  1794, 
for  lOOOZ. — upon  *  the  ground  of  the  provision  made  for  [  *  487  j 
the  plaintiff  by  the  settlement  previous  to  her  marriage  with 
the  defendant  Lord  Elibank,  in  1770.  By  that  settlement,  the  sums 
of  12,000/.  and  5000/.  New  South  Sea  Annuities  wia-e  settled  in 
trust  for  Lord  Elibank  for  life;  and  after  his  decease,  for  Lady 
Elibank  for  life,  as  a  jointure,  and  in  lieu  of  dower  or  thirds;  and 
after  the  decease  of  both,  in  trust  for  the  children.  The  sura  of 
4000/.  New  South  Sea  Annuities  was  settled  in  trust  for  her  sepa- 
rate use  for  life;  and  after  her  death,  for  her  children:  and  2000/. 
5/.  per  cent.  Bank  Annuities  for  her  separate  use  for  life;  and  after 
her  death,  for  her  children,  as  she  should  by  will  appoint.  All 
these  sums  were  her  property  before  marriage.  The  settlement 
also  gave  her  some  contingent  interests. 

In  the  entail  of  Lord  Elibank's  estate,  a  power  was  reserved  to 
charge  200/.  a  year  jointure,  and  50/.  a  year  to  each  of  his  younger 
children,  not  exceeding  in  the  whole  200/.  a  year,  under  a  condition, 
that  the  estate  should  be  chargeable  with  only  one  jointure  at  a  time; 
and  that,  if  the  power  of  charging  for  children  had  been  exercised 
by  a  preceding  heir  in  tail,  the  heir  in  possession  should  not  charge 
for  his  younger  children.  The  defendant  Lord  Elibank,  by  his  an- 
swer, stated  that  a  former  Lord  Elibank  did  charge  to  the  full  ex- 
tent of  that  power. 

The  Solicitor -General,  Mr.  Grant,  and  Mr.  Alexander,  for  the 
plaintiff. — The  plaintiff  desires  an  account  of  the  personal  estate  of 
Lady  Cranston,  and  that  a  provision  may  be  made  for  her.  The 
defendant  Montolieu  insists  that  is  not  to  be  done,  because  he  is  a 
creditor  of  her  husband;  contending  that  this  case  is  out  of  the  usual 
rule  upon  which  the  Court  acts  for  a  wife;  and  that  there  is  no  nec- 
essity to  come  to  this  Court,  the  fortune  not  being  in  Court   nor 

539 


*  488  LADY  ELIBANK  V.  MONTOLIEU. 

under  the  control  of  the  Court.     In  Jewson  v.  Moulson    (ni),  Lord 
Hardwicke  held,  that  is  not  a   necessary  ingredient  to  enable  the 
Court  to  act  upontheproperty ;  and  that  this  Court  would  interfere  to 
prevent  the  husband  from  obtaining  it  through  a  Court  of  concur- 
rent jurisdiction,  as  the  Ecclesiastical  Court;  because  that 
[  *  488  J  *  Court  cannot  give  the  wife  a  remedy;  though  he  doubted 
where  it  could  be  got  at  without  the  aid  of  this  Court,  of 
a  court  of  concurrent  jurisdiction;  and  he  states  that  the  rule  is  as 
old  as  the  time  of  King  Charles  I.,  and  cites  a  case  from  Tothill  (n). 
There  have  been  many  instances  of  an  injunction  to  restrain  the  hus- 
band from  proceeding  in  the  Ecclesiastical  Court,  refusing  to  make 
any  provision  for  his  wife;  and  that  Court  having  no  power  to  compel 
him.     The  cases  upon  this  subject  are  collected  in  Mr.  Cox's  note  to 
Bosvilv.  Brander  (o);  and  the  result  is,  that,  where  the  property  is  a 
subject  of  equitable  cognizance,  it  is  not  material  v;hether  the  wife,  or 
the  husband,  or  his  representatives  or  general  assignees,  come  for  the 
aid  of  the  Court.     A  wife  in  the  situation  of  this  plaintiff,  therefore 
may  come  to  this  Court  for  the  purpose  of  having  that  to  which  she  is 
entitled  secured  to  her  and  her  family,  and  part  settled  to  her  sepa- 
rate use.     She  is  entitled  to  the  same  reference  as  was  directed  in 
Worrall  v.  Marlar,  and  Bushman  v.  Pell  (p),  for  the  purpose  of  re- 
ceiving a  proposal  for  the  settlement.     In  Wright  v.  Rutfer  (q),  the 
Master  of  the  Eolls  observes,  that  it  is  now  determined,  that  an  ac- 
tion will  not  lie  against  the  executor  for  property  bequeathed  to  a 
married  woman;  and  one  of  the  reasons  is,  that  the  husband  would 
get  it  free  from  the  condition  a  Court  of  equity  imposes.     It  is  not 
necessary,  therefore,  that  the  property  should  be  in  this  Court,  or  in 
the  hands  of  trustees;  for,  if  it  was  in  the  Ecclesiastical  Court,  or  in 
the  hands  of  an  executor  or  an  administrator,  the  interest  of  the  wife 
is  protected.     That  case  related  to  a  residue  of  personal  estate  in  the 
hands  of  an  administrator,  for  which  it  was  not  necessary  to  come 
here;  but  that  was  held  not  to  make  any  difference.     But,  suppose 
the  husband  could  sue  at  law,  this  defendant  could  not  make  this 
defence,  that  he  will  not  pay,  but  will  keep  this  fund  in  satisfaction 
of  the  husband's  debt  to  him;  for  it  is  clear,  at  law,  a  creditor  of  the 


(m)  2  Atk.  417. 

(n)  Tanfield  v.  Davenport,  Tothill,  179;  Mealis  v.  Mealis,  Hil.  1764;  5  Ves. 
517,  note  to  Blount  v.  Bestland. 
(o)  1  P.  Wms.  458. 

(p)  1  Cox.  l."53;  ]  P.  Wms.  459,  Mr.  Cox's  note. 
Iq)  2  Ves.  jun.  076. 

540 


LADY  ELIBANK  V.  MONTOLIEU.  *  i'.)0 

husband  cannot  set  off  tho  husband's  debt  against  the  demand  of 
the  husband  and  wife,  and  being  entitled  in  her  right  he  must  sue 
with  her.  Still  less  should  he  be  permitted  to  retain  in 
equity  *  upon  that  ground;  for,  where  he  is  permitted  to  [  *  4S'.*  J 
avail  himself  of  the  legal  right,  the  right  must  be  clear. 
There  have  been  several  other  cases,  in  which  the  court  has  acted 
upon  a  residue,  just  as  if  the  property  was  in  the  hands  of  trustees. 
The  accident,  that  Montolieu  is  the  administrator,  cannot  alter  the 
right  of  the  wife.  In  Afherton  v.  Knoivell,  a  husband,  entitled  in 
right  of  his  wife  to  an  income,  being  unable  to  maintain  her,  the 
Court  referred  it  to  the  Master  to  see  what  it  would  be  proper  to  al- 
low her  out  of  that  fund;  Sleechv.  Thorington  (r);  Watkijnsv.  Wat- 
fcyus  there  cited  (s) ;  Milner  y.  Colmer  (t);  Oglander  \.  Baston  (u). 

The  only  ground  that  can  he  taken  against  this  bill  is,  that  Lord 
Elibank  became  the  purchaser  of  what  might  in  the  future  accrue 
to  Lady  Elibank;  but  there  is  no  stipulation  of  that  sort  in  tho 
settlement,  nor  any  indication  of  that  intention.  Oa  the  contrary, 
all  the  funds  settled  are  her  own,  and  a  very  scanty  provision  is 
made  for  her  out  of  his  estate.  In  Burdon  v.  Blaster,  in  1775,  the 
husband  having  become  a  bankrupt,  the  question  arose  between  the 
assignees  and  the  wife.  Tho  bill  was  filed  by  the  assignees  ;  and, 
though  an  objection  was  raised  on  account  of  the  settlement,  the 
wife  obtained  her  equity.  In  Pawlet  v.  Delavel  {v)  it  is  laid  down 
that  though  the  Court  will  make  a  decree,  where  the  husband  and 
wife  are  parties,  where  the  wife  has  a  proper  settlement,  to  pay  to 
the  husband  and  wife,  where  the  wife  has  not  had  a  sufficient 
settlement  the  Court  will  not.  As  to  the  form  of  this  suit,  the  wife 
sues  alone,  it  is  true,  not  with  her  husband  ;  but  that  was  the  case 
in  Worrall  v.  Marlar;  if  she  has  the  equity  against  her  husband, 
she  must  be  entitled  to  sue. 

The  Attorney -General,  Mr.  Mansfield,  and  Mr.  W.  Agar,  for  the 
defendant  Montolieu. — The  objection  to  the  form  of  the  suit  would 
merely  occasion  delay;  and  a  bill  would  be  filed  in  their  joint  names. 

Thfere  is  no  case  in  which  the  Court  has  decreed  against  a  trustee 
who  had  paid  the  kusband  without  suit  that  the  wife  had 
an  equity  to  charge  the  trustee.     The  husband  *  suing  in  [  *  490  ] 
the  Ecclesiastical  Court,  is  suing  persons  unwilling  to  pay  him; 
and  the  trustee  or  executor,  so  sued,  has  come  into  this  Court  to 

(r)  2  Ves.  560.  (s)  2  Atk.  96.  (<)  2  P.  Wuis.  639. 

(m)  1  Vern.  396.  (v)  2  Ves.  663. 

541 


■V^  4:131  LADY  ELIBANK  V.  MONTOLIEU. 

restrain  him.  That  is  quite  a  different  case.  Suppose  the  husband 
institutes  a  suit  in  the  Ecclesiastical  Court,  and  the  trustee  submits 
to  pay,  could  the  wife  come  here  and  say,  it  was  in  fraud  of  her 
Equity?  Lord  Hardwicke,  in  Jeiuson  v.  Moulson,  supposes  a  case, 
where  the  husband  can  come  at  the  property  without  the  aid  of  the 
Court.  All  the  instances  are,  where  the  person  has  refused  to  pay, 
unless  compelled  by  a  Court  of  equity.  That  gives  the  jurisdiction; 
and  none  can  be  produced,  where  the  executor  has  been  prevented 
from  paying  to  the  husband,  if  he  chose  to  do  so;  or  where,  having 
paid  to  the  husband,  he  has  been  charged  as  upon  a  breach  of  duty 
by  reason  of  that  payment,  and  made  to  refund.  The  case  of 
Worrall  v.  Marlar  is  a  singular  one,  and  was  influenced  by  the  in- 
solvency of  the  husband;  but  this  plaintiff  has  a  competent  provision. 
This  case  is  certainly  new,  in  the  circumstances  that  the  husband 
is  debtor  to  the  other  defendant;  but  if  he  could  have  paid  the  hus- 
band, and  the  Court  would  not  have  made  him  refund,  there  can  be 
no  difference  from  his  retaining  against  the  husband.  Suppose 
Lord  Elibank  had  sued,  and  the  equity  of  the  wife,  having  a  very 
large  provision,  was  out  of  the  question,  this  Court'  would  never 
compel  the  administrator  to  pay  that  share  to  his  debtor,  unless  the 
latter  would  allow  the  debt.  This  Court  goes  infinitely  beyond 
Courts  of  law,  as  to  set  off.  It  would  be  strange  to  permit  the  wife 
to  intervene  against  the  administrator  retaining,  where  she  could 
not  intervene  to  prevent  his  paying  her  husband,  and  the  husband 
paying  his  debt  out  of  that.  Burdon  v.  Blaster,  Jeivson  v.  Moulson, 
and  all  the  other  cases,  go  upon  the  same  ground  ;  that  the  pro- 
perty was  in  the  Court,  and  the  husband,  or  his  assignees,  could 
not  have  it  without  the  assistance  of  the  Court.  In  this  case  the 
plaintiff  comes  to  get  it  from  the  administrator,  contrary  to  the 
plainest  equity  between  him  and  her  husband.  There  is  no  in- 
stance of  a  bill,  by  the  wife  against  her  husband,  to  have 
[  *  491  ]  *  the  property  settled  to  her  separate  use  ;  which  is  the 
object  of  this  bill.  This  property,  though  subject  to  the 
equity  of  the  wife,  is  the  property  of  the  husband  :  Packer  v. 
Wyndham  (iv). 

The  Solicitor  General,  in  reply. —Pacfcer  v.  Wyndhamhas  noth- 
ing to  do  with  this  case.  The  wife  being  dead,  and  without  issue,  the 
question  arose  between  the  assignees  of  Mr.  Packer,  and  the  next 
of  kin  of  Mrs.  Packer;  and  it  was  insisted  that,  if  the  agreement 

(w)  Prec.  Ch.  412. 

542 


LADY  ELILJANK  V.  MONTOLIEU,  *  492 

had  been  carried  into  execution,  Mr,  Packer  would  liave  been  enti- 
tled to  the  money:  and  sbe  Laving  been  provided  for  during  her 
life,  and  being  dead,  and  not  having  left  any  children,  the  purpose 
for  which  the  Court  laid  its  hand  upon  the  property,  to  secure  a 
settlement,  was  at  an  end.  The  rule  is  clearly  laid  down  in  March 
V.  Head  (x),  and  it  is  now  a  settled  rule,  that  if  a  husband,  in  right 
of  his  wife,  becomes  entitled  to  any  sum  exceeding  200/.,  this  Court 
will  not  permit  him  to  have  it  without  a  reference  to  the  Master, 
for  the  purpose  of  a  settlement,  unless  the  wife  consents  that  it 
shall  be  paid  to  her  husband.  The  rule  is  clear,  that,  wherever 
the  husband  becomes  entitled  to  sue  in  right  of  his  wife,  she  must 
consent  that  he  shall  have  it,  or  he  is  under  the  necessity  of  making 
a  settlement,  unless  the  master  is  of  opinion  that  the  settlement 
already  made  by  the  husband  is  such  as  to  answer  all  the  purposes , 
of  the  wife.  Packer  v.  Wyndham  is  mentioned  by  Lord  Hardicicke 
in  Bates  v.  Dandy  (y),  as  consisting  of  many  particular  circum- 
stances. Worrall  v.  Martor  has  determined,  that  the  wife  may  file 
the  bill  by  her  next  friend;  and  there  can  be  no  doubt,  that  this 
plaintiff  has  an  interest  that  will  enable  her  to  file  such  a  bill  for 
the  purpose  of  having  her  property  ascertained.  Lord  Elibauk  is 
passive.  It  is  true,  if  he  had  assigned  this  to  Montolieu,  that 
might  have  bound  the  plaintiff;  but  he  has  not  done  so.  This  ad- 
ministrator stands  in  the  character  of  trustee,  and  has  no  right  to 
object,  merely  for  his  own  advantage.  If  this  bill  should  be  dis- 
missed the  defendant  would  not  he  discharged,  but  on  the  death  of 
Lord  Elibank  the  right  would  survive,  and  she  might  file 
*a  new  bill.  It  is  not  like  a  release.  If  a  proper  settle-  [  *  492  ] 
ment  has  not  been  made,  there  must  be  a  proposal  laid 
before  the  Court,  as  in  Worrall  v.  Marlar.  That  must  be  made  by 
the  husband,  not  by  Montolieu,  who  has  no  more  right  than  any 
other  creditor. 

Lord  Chancellor  Loughborough  (s). — I  wish  to  consider  this  case. 


Lord  Chancellor  Loughborough. — The  only  difficulty  I  had  in 
this  cause  was  upon  the  form  of  the  suit:  whether  a  married  wo- 
man, by  her  next  friend,  could  be  the  plaintiff  in  this  Court. 

With  respect  to  the  point  made  by  the  answer  of  Montolieu,  that 

~  (.r)  3  Atk.  720.      ~^ 

[ij)  2  \tk.  2(37.  See  statpinent  of  Bates  ?•.  Dandy,  from  Keg.  Lib.  1  Kuss. 
33,  n.,  and  a  note  of  Lord  Hardwicke's  judgmeut,  3  Russ.  72,  n. 

(z)  Aftei\vard.s  Earl  of  Rossi vn. 

543 


*  493  LADY  ELIBANK  V.  MONTOLIEIJ.    - 

he  had  a  right  to  retain  against  the  debt  of  the  hnsband,  being  pos- 
sessed of  the  fund  as  administrator,  and  the  wife  being  one  of  the 
next  of  kin,  I  am  very  clearly  of  opinion  the  defendant  had  no  right 
to  retain  (a).  The  administrator  is  trustee  for  the  next  of  kin: 
the  plaintiff  being  one  of  them,  if  she  has  any  equity  against  her 
husband  with  regard  to  this  money,  that  equity  will  clearly  bar  any 
rifht  of  retainer  he  can  set  up  to  the  property,  of  which  he  became 
administrator. 

With  respect  to  the  only  difficulty  I  had  upon  the  point  of  form,  if 
she  is  entitled,  and  there  is  no  way  of  asserting  her  right  against  her 
husband,  except  by  a  bill,  that  objection,  I  think,  does  not  weigh 
much.  If  the  defendant  Montolieu  had  done  what  would  have  been 
the  natural  thing  and  the  right  thing,  and  what  he  certainly  would 
have  done  but  for  his  own  interest,  he  would  have  been  the  plain- 
tiff, desiring  the  Court  to  dispose  of  the  fund,  and  for  her  benefit,  to 
protect  her  interest  in  it.  Then,  upon  all  the  circumstances,  it  is 
very  clear,  if  it  had  come  before  the  Court,  it  would  have  been  mat- 
ter of  course  to  have  pronounced  upon  her  equity  upon  the  bill  of 
the  administrator,  praying  that  the  money  in  his  hands  might  be 
properly  disposed  of:  and  I  would  not  have  suffered  this  money  to 

be  paid  to  Lord  Elibank,  without  making  a  provision  for 
[  *  493  ]  her,  for  the  provision  upon  her  marriage  *was  clearly  not 

adequate  to  her  fortune;  audit  is  clear  that  provision  was 
made  upon  the  expectation,  that,  by  circumstances  to  occur  in  his 
family  there  would  be  an  opportunity  to  do  better  for  her  at  a  fu- 
ture period.  The  difficulty  was,  that  it  was  very  unusual  in  point 
of  form — the  bill  coming  on  the  part  of  the  wife,  instead  of  the 
husband. 

Declare,  that  the  defendant  Montolieu  is  not  entitled  to  retain, 
in  satisfaction  of  the  debt  due  from  the  defendant  Lord  Elibank  to 
him,  but  that  the  distributive  share  of  Lady  Cranstown's  fortune, 
accruing  to  the  plaintiff,  as  one  of  her  next  of  kin,  is  subject  to  a 
farther  provision  in  favour  of  the  plaintiff  and  her  children,  the 
settlement  made  upon  her  marriage  being  inadequate  to  the  fortune 
she  then  possessed.  Refer  it  to  the  Master  to  take  the  accounts, 
and  to  see  a  proper  settlement  made  upon  the  plaintiff  and  her 
children,  regard  being  had  to  the  extent  of  her  fortune  and  the  set- 
tlement already  made  upon  her. 

(a)  See  also  Carr  v.  Taylor,  10  Ves.  574;  Ex  parte  Blagden,  2  Rose,  294;  Ex 
parte  O'Ferrall,  1  G.  &  J.  347. 

544 


MURRAY  V.  LORD  liLlBANK.  *  494 


MURRAY  V.  LORD  ELIBANK. 


June  Qth.     July  8(Wi,  31.s-^,  1804. 
[reported  10  vEs.  84.] 

Right  of  children  to  a  provision  out  of  the  property  of  their  mother, 
under  a  decree  directing  a  settlement  by  the  husband  on  her  and 
her  children,  notirifhstanding  her  death  before  the  rejoort. 

Demurrer  to  the  bill  of  the  children  ^vas  overruled. 

The  bill  was  filed  by  the  infant  children  of  Lord  Elibank,  stating 
the  proceedings  in  the  cause  Lady  Elibank  v.  Montolieu,  and  the 
decree,  directing  the  Master  to  approve  a  proper  settlement  to  be 
made  by  the  defendant  Lord  Elibank  on  the  plaintiff,  Lady  Eli- 
bank his  wife,  and  her  children  by  him,  regard  being  had 
to  the  extent  *  of  her  fortune  and  the  settlement  already  [  *  494  ] 
made  upon  her  by  Lord  Elibank. 

The  bill  further  stated,  that  before  any  report  Lady  Elibank  died 
intestate;  and  prayed  that  it  may  be  declared,  that  the  plaintiffs 
and  the  defendant  Alexander  Murray,  another  child  of  Lord  and 
Lady  Elibank,  have,  under  the  decree  of  the  19th  February,  1801, 
a  right  to  have  a  provision  made  for  them  out  of  the  said  one- 
fourth  of  the  personal  estate  of  Lady  Cranstown:  and  that  it  may 
be  refen-ed  to  the  Master  to  approve  of  a  proper  settlement  to  be 
made  by  the  defendant  Lord  Elibank  upon  the  plaintiffs  and  the 
defendant  Alexander  Murray,  being  all  the  children;  regard  being 
had  to  the  extent  of  the  fortune  of  Lady  Elibank,  and  the  settle- 
ment already  made  by  Lord  Elibank. 

To  this  bill  the  defendant  Montolieu  put  in  a  demurrer. 

Mr.  Alea-ander  and  Mr.  Cooke,  in  support  of  the  bill. — 

The  question  is,  whether  the  children  are   entitled   to   sustain  a 

supplemental  suit,  so  as  to  have  the  benefit  of  the  decree.     This 

right  is  purely  a  creature  of  the  Courts  of  equity  of  this  country. 

Upon  principle,  why  should  the  interest,  given  by  the  decree   to 

35  WHITE  ON   EQUITY.  545 


-  405  MURRAY  V.  LORD  ELIBANK. 

i>articular  persons,  beyond  the  interest  of  the  parent,  depend  upon 
the  accident  of  death  ?  But  the  interest  of  the  children  rests  most 
safely  on  the  uniform  practice.  In  Roive  v.  Jackson  (b),  it  was 
said  by  IVIr.  Madocks,  and  assented  to  by  the  Court,  that,  where  a 
husband  sues  for  his  wife's  fortune,  and  is  decreed  to  make  a  pro- 
posal for  a  settlement,  and  the  wife  dies,  the  husband  shall  be  com- 
pelled to  carry  it  into  execution  for  the  children;  and  he  cited  a 
manuscript  case  for  that,  and  observed,  that  the  same  thing  was 
said  by  Lord  Thtirlotc,  in  1779,  upon  a  motion  by  Mr.  Mansfield^ 
but  it  is  otherwise  if  the  wife  dies  before  the  decree.  It  is  now  de- 
cided, that  the  creditors  of  the  husband  are  exactly  in  the  same 
situation.  An  order  was  made  by  Lord  Alvanley,  enforcing  the 
equity  for  the  children,  after  the  death  of  the  wife,  even  against 
the  assignment  of  the  husband.  It  does  not  appear  whether 
[  *495  ]  the  husband  had  *  carried  in  a  proposal  before  the  death 
of  the  wife,  or  before  the  assignment;  but  that  cannot 
make  a  difference,  as  the  mere  proposal  could  not  bind  more  than 
the  decree,  in  obedience  to  which  it  is  made.  The  rule  is  now 
clearly  settled,  that  the  children  have,  through  their  mother,  an  in- 
terest in  her  fortune.  The  uniform  language  of  the  Court  is,  that 
the  husband  shall  go  before  the  Master,  and  lay  proposals  for  a  set- 
tlement upon  the  wife  and  children.  It  appears,  from  Hearle  v, 
Greenbank  (c),  that  Lord  Hardivicke  so  considers  it,  and  seems  to 
think  that  a  decree  might  be  made  after  the  death  of  the  wife,  the 
children,  even  after  her  death,  having  a  right  against  the  father  for 
a  provision.  But  here  is  a  decree,  establishing  this  right  of  the 
children  in  the  life  of  the  wife,  and  the  settlement  is  to  be  consid- 
ered as  made  at  the  date  of  the  decree,  and  in  the  nature  of  an 
agreement  sanctioned  by  the  Court,  giving  the  husband  the  for- 
tune upon  terms.  In  Martin  v.  Mitchell,  the  case  before  Lord  Thur- 
low  in  1779,  the  Court,  after  the  death  of  the  wife  before  a  settle- 
ment, carried  the  proposal  into  execution  against  an  assignment  to 
a  creditor. 

Mr.  Richards  and  Mr.  W.  Agar,  in  support  of  the  demurrer. — In 
the  case,  either  a  sum  of  money,  the  property  of  a  married  woman, 
which  belongs  to  her  husband  in  her  right,  or  a  bond  or  note,  a 
chose  in  action,  or  what  Lord  Alvanley  called  a  chose  in  equity, 
which  the  husband  may  recover,  but,  if  he  does  not,  will  survive,  the 

{b)  2  Dick.  004,  stated  also  from  a  manuscript  note  of  Mr.  Eomitly. 
(c)  3  Atk.  69.5.     See  lb.  p.  717. 

546 


MURRAY  V.  LORD  KLIIJANK.  *  49G 

debtor  may  pay  the  husband  who  may  release  him.  It  is  his  prop- 
erty subject  to  the  contingency  of  survivorshii).  A  Courtof  ec^uity 
will  not  assist  him,  unless  he  will  make  a  settlement;  but,  if  the 
wife  does  not  desire  a  settlement,  the  Court  will  not  make  one  for 
her;  and  it  has  been  held,  that  the  Court  cannot  refuse  to  the  wife 
the  power  of  giving  the  property  to  her  husband.  It  is  the  prop- 
erty of  the  husband,  to  be  extended  to  the  wife  and  children,  if  she 
thiaks  fit;  but  the  Court  would  not,  upon  her  de.sire  in  court,  per- 
mit her  to  give  it  to  any  one  else,  as  she  might,  if  it  was  hers,  in- 
dependent of  the  equity  the  Court  attaches  upon  it. 
Having  not  the  property,  but  an  *  equity  only,  she  has  no  [  *  490  ] 
interest  to  give up.  There  is  no  analogy,  therefore,  to  the 
case  of  a  fine,  in  which  an  interest  do,e8  pass.  The  trustee  is  justi- 
fied in  paying  the  husband;  but,  if  the  wife  had  an  interest  in  it,  he 
would  be  answerable  for  that  to  her. 

But,  supposing  the  wife  to  have  some  interest,  can  the  children 
have  any?  If  she  is  dead  they  cannot  come  here  for  a  settlement: 
Scriven  v.  Tapley  (d).  It  is  said,  the  Court  has,  by  the  decree, 
given  them  an  interest.  They  were  not  parties  before  the  Court  at 
the  time  that  decree  was  made.  They  have  no  more  interest  in  the 
propertj^  than  a  stranger;  but  are  considered  by  the  Court  in  a  man- 
ner comprehended  in  the  mother,  while  she  exists,  who  is  therefore 
allowed  to  extend  her  plan  of  provision  to  them,  but  not  as  distinct 
and  separate  objects,  having  an  interest  independent  of  her.  Sup- 
pose Lady  Elibank  had  waived  the  order  for  a  settlement,  and  de- 
sired the  money  to  be  paid  to  her  husband,  the  Court,  considering 
the  equity  hers,  would  have  held,  that  she  might  disappoint  her 
children.  The  proposal,  not  completed  and  carried  into  execution 
by  the  Court,  is  oily  an  offer;  and,  if  the  wife  dies  before  it  is  car- 
ried into  execution,  the  husband  is  remitted  to  his  legal  right.  In 
all  these  cases  everything  is  given  with  reference  to  the  wife — noth- 
ing independent  of  her.  Only  two  authorities  are  produced  for 
making  any  order  for  the  benefit  of  the  issue  of  the  marriage  after 
the  death  of  the  wife;  the  one,  Roive  v.  Jackson,  a  very  short  note; 
the  other,  an  order,  made  by  Lord  Alvanley,  upon  petition,  by  some 
slip  in  the  absence  of  the  assignees,  who  were  not  parties,  and  with- 
out even  inquiring  whether  they  had  any  objection  to  it.  The 
property  was  very  small,  which  perhaps  might  have  had  some  in- 
fluence. The  Court  cannot  say  what  proportion  the  wife  would 
Oi)  Amb.  509.     2  Eden,  :537. 

547 


*  497  MURRAY  V.  LORD  ELIBANK. 

have  settled  upon  herself  and  what  upon  her  children.  In  Macau- 
lay  V.  Philips  (e),  it  was  held,  that  the  decree  gave  no  interest  to 
the  husband,  but  it  survived  to  the  wife;  and  Lord  Alanley  says,  if 

she  died,  notwithstanding  his  proposal,  he  would  have  been 
[  *  497  ]  entitled.     That  opinion  was  given  by  Lord  Alvanley  *  with 

great  deliberation,  and  takes  the  distinction  between  a 
settlement  approved  by  the  Court  and  a  mere  proposal. 

Lord  Chancellor  Eldon. — There  are  two  points  upon  this  demur- 
rer; one  of  form,  the  other  upon  the  merits  (/).  If  the  wife  has 
this  equity,  for  a  provision  for  herself  and  her  children  up  to  the 
moment  of  the  completion,  it  is  competent  to  her  to  give  it  to  her 
husband.  A  great  variety  of  proceedings  have  occurred,  in  which 
the  Master  has  stated,  that,  with  reference  to  the  point  of  settlement, 
the  party  had  waived  it;  and  I  apprehend,  it  will  be  found  that  she 
may,  between  the  period  of  the  order  and  her  death,  waive  the  bene- 
fit of  that  order  (g).  The  question  then  is,  if  between  the  date  of 
the  order  and  her  death,  she  does  not,  by  some  authoritative  proceed- 
ing, express  an  alteration  of  her  mind,  whether  that  order  is  to  stand 
for  the  benefit  of  the  children.  The  two  decisions  that  have  been 
mentioned  are  strong  authorities  for  that.  Let  an  enquiry  be  made 
into  the  circumstances  of  those  cases;  and,  as  to  the  latter,  whether 
the  assignees  of  the  husband  were  heard  or  not. 


(h)  Mr.  Alexander,  for  the  plaintiffs,  stated  the  case  of  Martin  v. 
Mitchell,  from  the  Register's  book,  in  which  the  motion  before  Lord 
Thurlow,  in  1779,  was  made.  In  1777,  a  decree  was  made  for  an  ac- 
count, and  that  what  should  be  found  due  to  Hannah  Fearns  should 
be  paid  into  Court,  to  her  separate  account,  with  the  usual  direction 
for  a  settlement.  The  sum  of  3000Z.  was,  by  the  report,  stated  to  be 
due,  and  was  carried  over.  After  her  death,  in  1779,  the  motion, 
referred  to  in  Roive  v.  Jackson,  to  pay  that  sum  to  the  husband,  was 
made,  and  refused;  and  an  order  was  made,  directing  the  husband 
to  go  before  the  Master,  and  execute  the  order  for  a  proposal.  That 
proposal  was  carried  into  effect,  by  petition,  at  the  Rolls;  and,  under 

(e)  4  Ves.  15. 

(/)  Feme  covert  may  waive  her  equity  for  a  settlement  out  of  her  own  prop- 
erty, even  after  the  order,  at  any  time  before  its  completion. 
(g)  See  Lloyd  v.  Williams,  1  Madd.  466. 
(h)  July  30tli,  1H04. 

548 


MURRAY  V.  LORD  EUBANK.  *  499 

another  order,  in    1803,  statiag  all  the  proceedings,  the  children 
were  paid. 

It  appears  from  these  cases,  that  the  equity  of  the  wife  • 
*  does  survive  to  the  children ;  and  their  only  mode  of  avail-  [  *  498  ] 
ing  themselves  of  this  interest  is  by  supplemental  bill.  The 
case  of  Macaulay  v.  Pldlips  is  not  applicable.  The  dictum  of  Lord 
Alvauley  would  have  been  inaccurate,  if  there  had  been  any  chil- 
dren; but  there  were  no  children.  It  amounts  to  no  more  than  that 
the  proposal  did  not  sever  the  joint-tenancy  between  the  husband 
and  wife.  If,  as  your  Lordship  has  observed,  the  wife  can  waive 
her  right  under  the  order  for  the  benefit  of  her  children  and  her- 
self, that  cannot  affect  a  case  where  she  has  not  waived,  and  is  dead- 

Lord  Chancellor  Eldon. — The  question  is,  what  is  the  effect  of 
such  an  order,  as  constituting' a  right  in  the  issue  to  a  provision,  if 
the  wife  dies  without  any  act  done  after  the  date  of  that  order.  If 
this  case  had  been  antecedent  to  the  period  when  the  manuscript 
case  to  which  Mr.  Madocks  alluded  was  decided,  it  would  have  been 
very  difficult,  consistently  with  what  the  Court  does  with  the  wife's 
property,  to  say  there  was  such  a  right  as  is  now  asserted,  upon  a 
proceeding  that  went  no  farther  than  an  order  to  lay  a  proposal  before 
the  Master  {i).  The  husband  where  he  can,  is  entitled  to  lay  hold 
of  his  wife's  property,  and  this  Court  will  not  interfere.  Previously 
to  a  bill,  a  trustee,  who  has  the  wife's  property,  real  or  personal,  may 
pay  the  rents  and  profits,  and  may  hand  over  the  personal  estate  to 
the  husband  {j).  Lord  Alranleij,  in  Macaulay  v.  Philips,  has  laid 
down,  that,  after  a  bill  filed,  the  trustee  cannot  exercise  his  discre- 
tion upon  that;  that  the  bill  makes  the  Court  the  trustee,  and  takes 
away  his  right  of  dealing  with  the  property,  as  he  had  it  previously. 
I  have  heard  that  otherwise  stated  in  this  Court,  at  the  bar,  at  least. 
But  that  case  is  the  last;  and  I  think  contains  very  wholesome  doc- 
trine upon  that  point.  I  should  iiave  supposed,  a  decree  made  in 
the  cause  proceeded  upon  the  right  or  equity  in  the  wife  at  the  til- 
ing of  the  bill;  for  decrees  are  only  declarations  of  the  Court  upon 
the  rights  of  the  parties  when  they  begin  to  sue.  The  wife 
is  entitled  to  call  for  a  declaration,  that  she   -  then  had  a  [  *499  ] 

(/)  Husband,  -where  he  can,  may  lay  hold  of  wife's  property;  and  this  Court 
will  not  interfere. 

(.;')  Previously  to  a  bill,  a  trustee  for  a  feme  covert  may  pay  her  personal 
property,  or  the  rents  and  profits  of  her  real  estate,  to  her  husband:  not  after  a 
bill  tiled. 

549 


^'  ^00  MURRAY  V.  LORD  ELIBANK. 

right  to  a  provision  for  herself  and  her  children;  and  yet  it  is  clear, 
after  such  a  bill  filed,  she  might  come  into  Court  and  consent  to  her 
husband's  having  the  fund  entirely  under  his  dominion.  If  she 
does  not,  the  Court,  by  the  decree,  orders  a  proposal  to  be  made  for 
a  settlement  upon  the  wife  and  issue. 

It  has  been  truly  observed,  that  this  doctrine  is  a  mere  (a)  creat- 
ure of  the  Court,  founded  altogether  in  its  practice.  The  case  of 
Macaiiley  v.  Philips,  proves,  what  I  should  have  had  no  doubt  upon, 
that  notwithstanding  that  order  for  a  proposal,  if  either  party  died 
while  it  rested  merely  in  proposal,  that  would  not  affect  the  right 
by  survivorship  as  between  the  husband  and  wife.  There  were  no 
children  in  that  case,  certainly.  It  is  not  unfrequent,  where  the 
Master  makes  his  report  after  a  decree,  for  him  to  state,  that  the 
parties  had  declined  to  lay  a  proposal  for  a  settlement  before  hirof. 
That  has  occurred  since  I  have  sat  here;  but,  when  at  the  bar,  I 
was  frequently  concerned  in  this  final  arrangement,  that,  notwith- 
standing such  order  by  the  original  decree,  upon  further  directions 
the  wife  came,  consenting  that  the  fund  should  be  taken  out  of 
Court,  and  was  permitted  to  do  so.  If,  therefore,  the  issue  have  a 
right  against  the  father,  it  is  dependent  altogether  upon  the  will  of 
the  mother.  There  is,  perhaps,  some  difficulty  in  making  all  the 
principles  of  the  Court,  upon  this  subject  consistent  with  the  notion 
of  such  right  in  the  children;  but -it  is  not  for  me  to  reconcile  all 
these  principles,  if  there  is  practice  sufficient  to  establish  a  given 
course  as  to  that.  In  Roui  v.  Jackson  (and  I  can,  from  my  own 
memory,  confirm  both  accounts  of  that  case),  upon  an  application, 
where  it  was  necessary  to  consider  whether,  the  wife  never  having 
expressed  any  change  of  opinion  between  the  period  of  the  order  for 
a  proposal  and  her  death,  that  order  gave  the  children  any  right, 
Mr.  Madocks  stated,  that  it  was  not  according  to  the  practice,  after 
that  order,  to  permit  the  husband  to  avail  himself  of  the  death  of 
the  wife  to  take  the  fund,  leaving  the  children  unprovided.  His 
authority,  always  considerable,  is  in  that  instance  peculi- 
[  *  500]  arly  to  be  regarded,  *  as  he  referred  to  another  case,  in 
which  Lord  ThuHoiv,  was  satisfied  that  such  was  the  rule, 
and  acted  upon  it.  .  But  it  does  not  rest  there;  for  in  a  subsequent 
case  it  is  clear  from  the  Register's  books  that  Mr.  Mansfield,  after 


(a)  Notwithstanding  an  order  for  a  proposal  for  a  settlement,  under  the 
equity  of  a  married  woman,  by  the  death  of  either,  while  resting  in  proposal, 
the  right  by  survivorship,. as  between  the  husband  and  wife,  is  not  affected. 

550 


MURRAY  V.  LOUD  ELIDANK.  *  500 

the  death  of  the  wife,  moved  that  a  sum  of  money  shouhl  Ije  paid 
to  the  huaband;  and  Lord  Thurlow  refused  that  application,  upon 
the  ground  that  the  order  for  a  proposal  on  behalf  of  the  children 
was  an  obstacle.  That  was  followed  by  what  Lord  Alcanleij  did 
upon  a  petition;  whether  regularly  or  not  will  not  shake  the  doc- 
trine, considering  what  had  been  done  before.  In  that  instance, 
Lord  Alvanleij  would  not  deliver  out  that  small  sum,  little  more  than 
300/.,  until  satisfied  that  there  was  some  provision  for  the  children. 

Taking  all  this  together,  however  numerous  the  difficulties  upon 
it,  it  is  too  much  for  me  to  say,  upon  the  argument  of  a  demurrer, 
all  that  has  been  done  in  the  cases  referred  to  is  to  go  for  nothing, 
because  it  is  difficult  to  say,  ab  ante,  it  should  be  done,  and  that 
I  am  to  set  up  a  different  course  of  practice.  I  agree  also  with 
Mr.  Alexander  as  to  the  dictum  of  Lord  Alvanley  in  Macaulay  v. 
Philips,  which  construction  is  necessary  to  make  him  consistent;  and 
attention  being  given  to  the  circiimstance  that  there  were  no  chil- 
dren, there  is  no  inconsistency  in  that  case.  The  principle  must 
be,  that  the  wife  obtained  a  judgment  for  the  children,  liable  to  be 
waived,  if  she  thought  proper;  otherwise,  to  be  left  standing  for 
their  benefit  at  her  death. 

Next,  as  the  form:    if  the  children  have  acquired  a  right  by  the' 
judgment  in  the  former  suit,  it  is  subsequent  to  the  institution  of 
the  proceeding  in  that  suit;  and  unless  they  can  apply  by  petition, 
under  the  liberty  to  apply,  I  do  not  see  how  they  can,  except  by 
supplemental  bill. 

The  demurrer,  therefore  ought  to  be  overruled.  If,  upon  the 
hearing  of  the  cause,  this  should  turn  out  to  be  wrong,  it  is  in- 
finitely better  that  it  should  go  to  the  House  of  Lords  upon  a  full 

hearing. 

Demurrer  overruled. 


551 


502  MURRAY  V.  LORD  ELIBANK. 


[  f  601  ]         *  MURRAY  v.  LORD  ELIBANK. 


May  21st,  22nd.     July  2Ut,  1806. 

[eEPOKTED  13  VES.  l.J 

Right  of  children  to  a  provision  out  of  the  property  of  their  mother, 
under  a  decree  directing  a  settlement  on  her  and  her  children : 
notivithstanding  her  death  before  the  report,  no  act  being  done  by 
her  to  waive  the  equity. 

In  this  cause,  the  demurrer  of  the  defendant  Montolieu  having  been 
overruled,  answers  were  put  in,  and  the  cause  came  on  to  be  heard. 

Mr.  Alexander  and  Mr.  Cooke,  for  the  plaintifts,  relied  upon  the 
opinion  expressed  by  the  Lord  Chancellor  upon  the  demurrer. 

Mr.  Richards,  and  Mr.  W.  Agar,  for  the  defendant  Montolieu. — 
This  is  a  very  important  and  new  question,  which  the  Lord  Chan- 
cellor did  not  profess  to  decide  upon  the  demurrer.  The  opinions 
that  have  been  expressed  shew  the  notion  that  has  prevailed  as  to 
the  practice,  but  there  is  no  decision  upon  it.  The  order  by  Lord 
Alvanley  would  not  have  been  made  if  the  Court  had  been  aware 
that  the  creditors  were  not  parties,  the  husband  and  wife  having 
assigned  the  fund,  to  secure  a  debt;  and  it  was  delivered  out  of 
Court  upon  the  statement  that  it  was  very  small,  the  creditors  not 
being  parties,  and  no  contest.  The  cases  of  Martin  v.  Mitchell,  and 
Roiue  V.  Jackson,  were  also  upon  petition,  and  no  contest.  It  is 
true,  this  equity  is  the  creature  of  this  Court;  it  has  been  held, 
both  here  and  by  Tuord  Eldon,  that  it  has  no  analogy  to  a  fine,  and 

it  does  not  arise  if  the  husband  gets  the  property,  if  it  is 
[  *  502  ]  *  not  intercepted  in  the  way;  but  if  the  order  of  the  Court 

is  necessary,  either  upon  the  bill  of  the  wife,  which  must 

now  be  admitted,  or  of  the  husband,  the  Court  will  make  him  do 

what  is  just;  otherwise,  their  is  no  jurisdiction  against  him,  and  he 

cannot  be  held  guilty  of  a  contempt.     He  may  run  his  life  against 

552 


MURRAY  V.  LORD  ELIBANK.  *  503 

hers.  The  Court  f^oen  uo  further  than  refusing  to  assist  him,  un- 
less he  will  make  a  provision.  The  Court  does  not  act  upon  the  in- 
terest of  the  wife;  for  if  so,  they  would  give  it  to  her.  The  Court 
has  no  dominion  n[Hm  the  subject,  but  exercises  a  sort  of  arbitrary 
authority,  there  being  no  interest  in  her  in  point  of  law.  The 
Court  cannot  compel  him  to  give  her  an  interest,  but  merely  re- 
fuses to  interfere  in  his  favour,  except  upon  certain  terms.  There 
is  no  doubt  that,  after  a  reference  directed,  as  to  a  provision  for  the 
wife  and  children,  she  may  come  the  next  day,  and,  by  her  own  act 
of  consent,  defeat  that  provision  for  her  children,  though  without 
her  consent  the  Court  would  not  give  the  fund  to  her  husband;  but 
there  is  no  jurisdiction  to  prevent  her  giving  it  to  him.  Mr.  Jus- 
tice Bitller  attempted  it,  and  refused  to  take  the  consent;  but  Lord 
Thurloiv  held,  that  he  could  not  refuse  it,  and,  with  great  reluctance 
gave  the  money  to  the  husband.  The  power  which  the  wife  has  in 
that  way  to  defeat  the  reference  in  favour  of  the  children,  shows 
clearly  that  the  reference  is  directed  upon  her  account,  not  theirs. 
In  the  case  of  Alexander  v.  M^Culloch  (I),  it  was  never  thought 
possible  to  give  the  property  to  the  wife;  but  each  came,  from  time 
to  time,  to  get  a  little;  and  Lord  Thurloiv  fed  the  husband  occa- 
sionally, in  order  to  induce  him  to  make  a  proposal.  But  she  might 
have  come  to  give  it  away  to  him;  and,  in  fact,  they  did  at  last  agree, 
as  they  did  also  in  Macaulay  v.  Philips  (ui).  The  protection  sub- 
sists only  as  long  as  the  wife  chooses.  AVhen  she  is  gone,  the 
equity  which  is  attached  to  her,  and  to  her  only,  must  be  gone  also. 
What  interest  can  the  children  have  against  their  father?  Are 
they  purchasers  as  against  him  ?  He  is  a  purchaser  of  his  wife's 
choses  in  action  by  the  act  of  marriage,  completed  by  the 
administration.  *  AVhat  right  have  the  children,  as  against  [  *  503  ] 
their  father,  to  insist  upon  a  part  of  the  fortune  ? 

In  Scriven  v.  Tapley  (n),  the  Lord  Chancellor  held  this   equity 

personal  to  the  wife,  reversing  a  decree  at  the  Rolls  in  favour  of  the 

children.     Bond  v.  Simmons  (o),  also,  is  an  authority  that  the  wife 

surviving  is  entitled  to  the  whole  ;  and  the  consequence  is,  that  by 

her  death  the  equity  is  gone,  and  the  children  cannot  file  a  bill  to 

bring  the  money  into  court.     These  authorities  outweigh  the  loose 

(I)  TaVs.  Jun.  192;'citetL  ~~~ 

(m)  4  Yos.  15. 

(n)  Ami).  509;  S.  C,  2  Edeu,  337. 

(o)  3  Atk.  20. 

553 


*  504  MURRAY  V.  LORD  ELIBANK. 

dicta  upon  the  petition,  and  without  contest,  in  favour  of  this  bill; 
and  it  stands  upon  no  foundation  of  principle. 

Mr.  Alexander  in  reply. — The  opinion  of  Lord  Eldon  is  express- 
ed in  favour  of  this  bill.  It  is  supposed  that  the  plaintiffs  must 
contend,  that  this  equity  would  bind  the  wife  herself,  if  she  chose 
to  relinquish  it.  But,  admitting  that,  notwithstanding  an  order  for 
a  settlement,  if  the  husband  dies,  the  wife  surviving  is  not  bound  to 
make  a  settlement,  can  it  be  said,  therefore,  the  husband  is  not 
bound?  There  is  no  doubt,  the  equity  is  that  of  the  wife;  and  she 
may,  in  any  stage,  come  into  court,  and  relinquish  the  equity  both 
for  herself  and  her  children. 

[Master  of  the  Rolls  (Sir  W.  Grant).— Down  to  what  time?]. 

To  the  time  at  which  the  settlement  is  actually  made.  It  is  an 
equity,  in  opposition  to  the  husband's  legal  right,  upon  which  it  is 
imposed  as  a  burthen  in  favour  of  herself,  and  those  in  whose 
favour  she  may  think  fit  to  apply;  and  which  she  may  at  any  period 
abandon.  There  is  nothing  inconsistent  in  her  right  to  relinquish 
that  claim,  which  she  has  on  behalf  of  herself  and  her  children. 
But  after  her  death  the  Court  will  suppose  she  died  with  the  inten- 
tion to  insist  upon  it  for  her  children;  in  whose  behalf  it  shall  subsist 
after  her  death,  unless  expressly  waived  during  her  life.  After  the 
order  made  upon  her  application,  and  not  waived,  which  by  the 
event  of  her  death  is  now  become  impossible,  the  right  of  the  chil- 
dren is  vested;  the  effect  of  the  order  being  a  specific  lien  upon  the 
particular  fund,  in  respect  of  which  the  husband  makes 
[  *  504  ]  the  *  application,  notwithstanding  the  general  terms  of 
the  order. 

The  Master  of  the  Rolls  (Sir  W.  Grant). — This  case  arises  out 
of  the  case  of  Lady  Elibank  v.  MoiitoUeu;  by  the  result  of  which 
the  right  of  Lady  Elibank  to  maintain  a  suit  for  a  settlement  against 
her  husband  and  the  administrator  was  established  ;  and  it  was 
determined,  that  the  claim  which  the  administrator  had,  as  a  cred- 
itor of  her  husband,  did  not  stand  in  the  way  of  her  right. 

The  question  now,  (Lady  Elibank  having  died  before  anything 
was  done  under  the  decree,  by  which  the  Master  was  directed  to 
approve  a  settlement  upon  her  and  the  children,)  is,  whether  the 
children  have  a  right  to  the  benefit  of  that  decree? 

It  is  contended,  on  the  part  of  the  defendant  Montolieu,  that  the 
right  to  demand  a  settlement  is  a  personal  equity,  attaching  to  a 
554 


MURRAY  V.  LORD  KLIDANK.  *  505 

married  woman,  and  in  no  sonse  the  right  of  the  ehildrpn;  for,  if  it 
were,  the  mother  could  not  reliru[uiHh  it,  as  it  is  admitted  she  may; 
that,  though  the  children  may  derive  a  consequential  benefit  from 
having  the  settlement  made  upon  the  mother  extended  to  them,  yet 
when  her  right  is  out  of  the  question,  as  it  is  in  this  instance  by 
her  death,  there  must  likewise  be  an  end  of  theirs.  Upon  the  other 
side  it  was  contended,  that,  when  a  settlement  was,  by  the  decree, 
directed  to  be  made  upon  the  mother  and  the  children,  the  right  of 
the  children  is  so  far  fixed,  that  the  Court  will  recognise  and  carry 
it  into  effect,  notwithstanding  her  death,  provided  no  act  was  done 
by  her  to  waive  the  benefit  of  it.  It  seems  to  be  assumed  in  the 
argument,  both  here  and  before  Lord  Eldon,  that  it  was  competent 
to  the  mother  to  waive  the  settlement  at  any  time  before  it  was 
actually  completed;  that  is,  even  after  a  proposal  given  in  by  the  hus- 
band. Lord  Hardwicke,  however,  determined  the  contrary  ( 7? ) ; 
stating,  that  though  the  wife  might  give  up  her  interest  in  themoney, 
if  she  pleased,  yet  nobody  could  consent  for  the  children, 
which  may  be.  That  does  not  directly  apply  *  to  this  [  *  505  ] 
case;  as,  I  believe,  no  proposal  was  laid  before  the  Master 
in  this  case  (q). 

With  regard  to  this  equitable  right  which  a  married  woman  has 
in  this  Court  to  a  provision  out  of  her  own  fortune,  before  her  hus- 
band reduces  it  into  possession,  it  stands  upon  the  peculiar  doctrine 
of  this  Court.  It  is  vain  to  attempt,  by  general  reasoning,  to  as- 
certain the  extent  of  that  doctrine.  We  must  look  to  the  practice 
of  the  Court  itself.  It  is  sufficient  to  say,  the  habit  of  the  Court 
has  always  been  of  itself,  and  without  any  application  previously 
made  by  the  married  woman,  to  direct  an  inquiry,  when  money  has 
been  carried  over  to  her  account,  whether  any  settlement  has  been 
made;  for  the  money  is  carried  over  subject  to  that  inquiry,  and  the 
constant  habit  has  been  to  direct  a  settlement  not  upon  the  wife 
only,  but  upon  the  children  also.  I  am  not  aware  that  she  has  in 
any  case  been  permitted  to  say  she  claims  a  settlement  for  herself, 

{p)  Anon.,  2  Ves.  671.  See,  however,  Lloyd  r.  "Williams.  1  Madd.  466,  in 
which  tlie  opinion  of  Lord  Ehlon  is  rocofjcniscd  and  approve  of. 

(7)  T1k>  equitable  rijilit  of  a  married  woman  stands  ujion  tlio  peculiar  doc- 
trine of  the  Court.  AVlicn  money  is  carried  over  to  lu'r  account,  the  liabit  of 
tlic  Court  is,  without  any, ])rc\  ions  a])plicati(m  l)y  lier,  to  dir(Mt  an  iii(|iiiry, 
whetluM'  any  settlement  lias  h(>cn  made:  and  tlie  constant  habit  lias  l)ecn  to  di- 
rect a  settlement,  not  upon  her  only,  but  upon  the  children  also:  her  option  to 
waive  a  settlement  not  euubliug  her  to  have  it  conlined  to  herself,  excluding 
her  children. 

555 


*  506  MURRAY  V.  LORD  ELIBANK. 

but  not  for  her  children.  She  has  the  option  not  to  have  any  set- 
tlement made;  but  if  a  settlement  is  to  be  made,  it  is  always 
directed  for  the  benefit  of  the  wife  and  the  children.  When  she 
comes  to  give  up  her  right  to  her  husband,  she  is  examined 
whether  she  wishes  for  any  settlement.  If  she  does  not  desire 
any  settlement,  then  the  money  is  paid  to  her  husband.  If  she 
desires  a  settlement,  the  settlement  is  upon  her  and  the  children. 

The  question  has  been  made,  whether  the  children  have  any  sub- 
stantive and  independent  right  to  claim  a  settlement  after  the  death 
of  their  mother,  if  a  settlement  was  not  directed  during  her  life? 
In  the  case  of  Hearle  v.  Greenbank  (r).  Lord  Hardicicke  appears  to 
state  that  as  a  doubtful  point;  and  that  he  conceived  there  was  no 
case  determining  that  the  children  have  such  right.  His  Lordship 
seems  not  to  have  recollected  the  case  that  was  before  him,  Grosve- 
nor  V.  Lane  (s),  in  which  he  took  notice  of  such  a  decree,  though 
the  question  before  him  was  not  upon  the  point.  That  was  the  case 
of  the  second  husband,  endeavouring  to  reduce  his  wife's  fortune  into 
possession;  and  the  Court  directed  a  settlement  upon  the 
[  *  500  ]  child,  the  immediate  point  in  the  cause  before  Lord  ^Hard- 
tvicke  turning  upon  the  right  of  the  child  absolutely  to 
the  whole  legacy,  in  consequence  of  an  appropriation  of  it  by  the 
second  husband. 

In  a  subsequent  case,  Scriven  v.  Tapley  (t),  Sir  Thomas  Clarke, 
as  a  matter  of  course,  taking  it  as  the  ordinary  equity,  directed  a 
proposal  by  the  representative  for  a  settlement  upon  the  child,  the 
wife  being  dead.  That  part  of  the  decree,  it  is  trae,  was  reversed 
by  Lord  Norihington :  but  the  opinion,  that  children  have  that  equity 
in  their  own  right,  and  independent  of  any  claim  through  the 
mother,  prevailed  so  much,  that,  notwithstanding  that  reversal,  in 
a  year  and  a  half  afterwards.  Sir  Thomas  Sewell,  in  Cockel  v. 
Phips  (u),  made  precisely  the  same  decree.  Everyone  knows  how 
intimately  Sir  Thomas  Sewell  was  acquainted  with  the  practice  of 
the  Court. 

There  is,  therefore,  a  great  deal  of  authority  in  opposition  to  that 
decision  by  Lord  Norihington,  in  Scriven  v.  Tapley,  all  weighing 


(r)  3  Atk.  695.     See  lb.  page  717. 

(.9)  2  Atk.  180. 

(/)   Amb.  509;  2  Eden,  3.37. 

(u)  1  Dick.  .391.  See.  however,  Lloyd  v.  Williams,  1  Madd.  464,  where  it 
appears  that  the  point  said  to  have  been  decided  by  Lord  Northington,  in 
Scriven  v.  Tapley,  did  not  arise. 

556    . 


MURRAY  ■«.  LOUD  ELIBANK.  *  507 

strongly  in  favour  of  the  right  of  tho  children  claiming  under  a 
decree  in  favour  of  their  mother;  fur,  if  their  right  to  come  with 
an  original  demand  for  a  settlement  upon  them,  their  mother  hav- 
ing died  without  demanding  any  settlement,  is  established,  h  forti- 
ori, if  she  has  claimed,  and  the  Court  has  directed  a  settlement,  the 
children  must  be  entitled.  As  to  that  there  are  very  few  cases,  but 
all  are  one  way.  The  doctrine,  as  far  as  there  is  any  memorial  of 
it,  is  uniform;  and  it  is  upon  the  uniform  habitual  doctrine  of  the 
Court  that  you  are  least  likely  to  find  cases;  and  in  the  cases  that 
have  occurred,  the  Court  has  interposed,  not  upon  any  controversy 
between  tho  parties,  but  upon  its  own  doctrine.  In  Martin  v. 
Mitchell,  the  husband  claimed  the  fund,  and  the  Court  would  not 
permit  him  to  take  it,  but  directed  the  former  order,  for  a  settle- 
ment upon  the  wife,  to  be  prosecuted.  In  Roire  v.  Jackson  a  simi- 
lar application  appears  to  have  produced  a  similar  refusal;  and  both 
these  cases  were  before  Lord  Thurloiv.  No  ground  is  laid  upon 
which  I  should  be  induced  to  depart  from  the  established  doctrine. 
We  can  look  nowhere  but  to  the  practice  of  the  Court  for 
the  extent  of  that  doctrine.  Here  we  find  it.  *  There  is  [  *  507  ] 
no  instance  in  which  the  husband  has  succeeded  in  get- 
ting money  out  of  coiirt  without  making  a  provision  for  the  chil- 
dren. 

These  plaintiffs,  therefore,  are  clearly  entitled  upon  their  supple- 
mental bill.  It  is  not  necessary  to  determine,  whether  they  could 
have  got  at  it  by  any  other  mode. 


By  common  law,  (unafFected  by  recent  legislation,)  on  marriage, 
the  husband  became  entitled  to  receive  the  rents  of  the  wife's  real 
estates  during  their  joint  lives,  and  he  became  absolutely  entitled 
to  all  her  chattels  personal  in  possession  and  to  her  choses  in  ac- 
tion, as  debts  by  obligation,  contract,  or  otherwise,  if  he  reduced 
them  into  j)ossession\  or  if  he  did  not,  as  administrator  of  his  wife,  if 
he  survived  her;  and  he  became  also  entitled  to  her  chattels,  real, 
with  full  power  to  alien  them,  though  if  he  died  before  his  wife, 
xvithoid  having  reduced  into  possession  her  dioses  in  action,  or  vith- 
out  hai-^ing  aliened  her  chattels,  real,  thov  would  survive  to  the  wife. 
See  Gilb.  Ten.  108;  Co.  Litt.  67  a.,  300  a.,  351  b.,  351;  1  Eoll. 
Ab.  342,  pi.  1;  Co.  Litt.  ISoh.;  Fleet  v.  Perrins,  3  L.  R.  Q.  B.  53B, 
4  L.  R.  Q.  B.  500.  [See  Hill  on  Trustees,  407;  Perry  on  Trusts, 
Sec.  626.] 

The  husband  acquired  this  interest  in  the  property  of  his  wife  in 
consideration  of  the  obligation  which,  upon  marriage,  he  contracted, 

557 


*  508  MURRAY  V.  LORD  ELIBANK. 

of  maintaining  her  and  his  children  by  her;  but  the  common  law 
was  defective,  inasmuch  as  it  possessed  no  means  of  ensuring  the 
performance  of  the  duty  imposed  upon  the  husband,  since  in  many 
cases  he  might  have  it  in  his  power  to  reduce  into  possession  all 
her  choses  in  action,  and  to  alien  all  the  property  to  which  he  was 
entitled yu?'e  mariti,  or  upon  his  becoming  bankrupt  or  insolvent  it 
would  vest  in  his  assignees  for  the  benefit  of  his  creditors,  and 
thus  his  wife,  however  great  may  have  been  her  fortune,  might, 
with  her  children,  be  left  utterly  destitute.  Courts  of  equity 
have,  from  a  very  early  period,  endeavored  to  remedy  this  defi- 
ciency in  the  common  law,  by  giving  to  the  wife,  in  certain  cases,  a 
right  to  a  provision  out  of  her  own  property;  this  right  is  called 
her  equity  to  a  settlement.  See  the  observations  of  Lord  Hardicicke 
in  Jeii'son  v.  Moulson,  2  Atk.  417;  and  of  Lord  Cottenham  in  Stur- 
gis  V.  Champneys,  5  My.  &  Cr.  101,  105. 

As  to  the  assignment  of  the  choses  in  action  of  a  married  woman, 
and  as  to  what  amounts  to  the  reduction  of  them  into  possession 
by  her  husband,  see  note  to  Hornshy  v.  Lee,  vol.  2,  post. 
[  *  508  ]  The  jurisdiction  to  compel  the  ^husband,  or  those  claim- 
ing under  him,  to  make  a  settlement  upon  the  wife,  was 
first  assumed  in  cases  where  it  was  necessary  for  them  to  apply  to 
the  Court  for  assistance  in  order  to  obtain  possession  of  the  prop- 
erty of  the  wife;  which  assistance  the  Court,  acting  upon  the  maxim, 
that  he  who  seeks  equity  must  do  equity,  withheld  until  an  adequate 
settlement  was  made  upon  the  wife.  Bosvil  v.  Brander,  1  P.  Wms. 
459.  [This  equity  is  enforceable  against  the  husband  and  all  per- 
sons claiming  under  him,  whether  they  are  assignees  for  value  or 
voluntary  assignees  in  bankruptcy.  It  is  also  paramount  to  the 
right  of  set-off  which  an  executor  or  administrator  from  whom  a 
legacy  or  distributive  share  was  due  to  the  wife,  has  by  reason  of 
any  indebtedness  of  the  husband  to  the  estate. 

If  the  interest  out  of  which  the  settlement  is  sought  is  a  life 
estate,  it  cannot  be  enforced  against  the  husband  if  he  supports 
the  wife,  or  against  his  assignee  for  value. 

The  reason  of  this  exception  is  that  the  assignment  of  the  life 
estate  will  be  good  only  during  the  coverature:  Bispham's  Eq. 
Sec.  113.] 

In  consequence  of  this  origin  of  the  jurisdiction,  it  was  thought, 
that  the  equity  of  a  wife  to  a  settlement  was  confined  to  those  cases 
in  which  the  husband,  or  those  claiming  under  him,  were  plaintiffs. 
See  Bosvil  v.  Brander,  1  P.  Wms.  460.  [As  to  the  parties  against 
whom  the  wife's  equity  to  a  settlement  will  be  enforced,  see  Paige 
V.  Esks,  19  Pick.  269;  Coppedge  v.  Threadgill,  3  Sneed,  577; 
Moore  v.  Moore,  14  B.  Mon.  259:  Bennet  v.  Dillingham,  2  Dana, 
436;  Udall  v.  Kenney,  5  Johns.  Ch.  464;  Phillips  v.  Hassell,  10 
Humph.  197;  Hanland  v.  Myers,  6  Johns.  Ch.  25;  Durr  v.  Bow- 
yer,  2  McCord,  Ch.  368.]  However,  since  the  decision  of  Lady 
Elibank  v.  Monlolieu,  the  wife  has  been  permitted  actively  to  assert 
558 


MURRAY  V.  LORD  ELIBANIv.  *  509 

her  equity  as  a  plaintiff  in  a  suit;  (Sturgis  v.  Champneys,  5  My. 
&  Cr.  105;  Eedes  v.  Eedf^,  11  Sim.  500;  Hanson  v.  Keating.  4  Hare, 
0;  Oshoni  V.  Morgan.  0  Hare,  431;  Dnncombe  v.  (Jreoiacrc,  2S 
Beav.  472;  2  De  G.  i'\  &  J.  500;)  or  if  there  bo  already  an  ex- 
isting Buit,  by  petition  therein  (Greedy  v.  Lavender,  \'-\  Beav.  02; 
Scott  V.  Spashett,  H  ]Mac.  &  G.  590)  at  any  time  before  the  hus- 
band has  actually  reduced  his  wife's  equitable  property  into  pos- 
session. And  see  Neivenham  v.  Peniberton,  1  De  G.  &  Sm.  044, 
and  the  remarks  thereon  in  In  re  Potter,  7  L.  R.  Eq.  487. 

A  trustee  is  always  justified  in  refusing  to  pay  over,  even  at  her 
request,  the  wife's  fund  to  the  husband,  and  thereby  enabling  him 
to  reduce  it  into  possession,  and  in  thus  insisting  on  affording  her 
an  opportunity  of  asserting  her  equity  to  a  settlemeut;  Re  Swan,  2 
H.  &  i\I.  34.  [A  trustee  may  pay  over  a  wife's  equitable  property 
to  the  husband  if  he  pleases,  and  such  payment  will  discharge  the 
responsibility  of  the  trustee. 

But  if  the  trustee  refuses  to  deliver  the  possession  to  the  hiisband, 
and  the  husband,  in  order  to  reach  the  funds  in  his  hands,  com- 
mences proceedings  in  equity,  the  court,  on  the  maxim  "that  he 
who  seeks  equity  must  do  equity,"  may  order  a  proper  settlement 
to  be  made  upon  the  wife  out  of  her  equitable  property  in  the  hands 
of  the  trustee:  Perry  on  Trusts,  Sec.  027;  Abernethy  v.  Aber- 
nethy,  8  Fla.  243;  Andrews  v.  Jones,  10  Ala.  401;  Barron  r.  Barron, 
24  Vt.  375;  Gassett  v.  Grout,  4  Met.  4SG;  Tucker  v.  Andrews,  13 
Me.  124;  Crook  v.  Turpin,  10  B.  Mon.  243;  Napier  v.  Howard,  3 
Kelley,  193;  Glen  v.  Fisher,  6  Johns.  Ch.  33;  Wiles  v.  AViles,  3  Md. 
1;  Chase  v.  Palmer,  25  Me.  342;  Stevenson  v-  Brown,  3  Green,  Ch. 
503;  Van  Duzer  v.  Van  Duzer,  6  Paige,  368.] 

Where  a  trustee  has  reason  to  believe  that  the  husband  and  wife 
have  agreed  to  settle  a  sum  of  money  in  his  hands,  and  especially 
if  the  wife  does  not  distinctly  express  a  wish  that  payment  is  to  be 
made  to  her  husband,  he  would  be  justified  in  paying  the  money 
into  Court:  In  re  Bendyshe,  3  Jur.  N.  S.  727. 

Where,  moreover,  a  trustee  has  paid  into  Court  a  fund  to  which 
a  married  woman  is  absolutely  entitled,  he  is  entitled  as  of  course 
to  his  costs  between  solicitor  and  client,  unless  his  conduct  has  been 
simply  capricious  or  vexatious.  Re  Sican,  2  H.  &  M.  31;  sed  vide 
contra,  Penfold  v.  Bouch,  4  Hare,  271;  in  that  case,  however,  when 
the  demand  was  made  upon  the  trustee,  there  had  been  already,  what 
the  Court  considered  a  sufficient  settlement  made  by  the  husband 
on  the  wife,  so  that  her  equity  to  a  settlement  was  clearlv  exhausted: 
2  H.  &  M.  38.     And  see  In  re  Roberrs  Trust,  W.  N.  1869,  p.  88. 

The  trustee,  moreover,  may   join  in   a  settlement  of  the  wife's 
funds,  and  for  that  purpose  with  the  consent  of  the  hus- 
band, he  may  *tran8fer  them  to  the  trustees  of  an  exist-  [  *  509  ] 
ing  settlement,  to  be  held  upon  the  trust  thereof,  and  such 
a  settlement  will  be  as  valid  as  if  directed  to  be  made  by  the  Court: 
Montejiore  v.  Behrens,  1  L.  R.  Eq.  171. 

559 


*  510  MURRAY  V.  LORD  I-LIBANK. 

Tbe  Court  of  Bankruptcy  has  it  seems,  jurisdiction  to  order  a 
settlemeut  to  be  made  upon  the  wife  of  a  bankrupt,  insisting  upon 
her  equity  to  a  settlement:  Ex  parte  Thompson,  1  Deac.  90;  Ex 
parte  Norton,  8  De  G.  Mac.  &  G.  258;  Ex  p>arte  Coysegame,  1  Atk. 
192. 

Inasmuch  as  a  married  woman  did  not  need  the  protection  of  the 
Court  in  the  case  of  property  to  which  she  was  entitled  to  her 
separate  use,  the  Court  never  considered  that  she  had  any  equity  to 
a  settlement  out  of  such  property.  This  being  so,  the  necessity  for 
a  married  woman  to  assert  her  equity  to  a  settlement  was  much 
diminished  by  the  Married  AVomeu's  Property  Act,  1870,  33  &  34 
Vict.  c.  93  (more  fully  treated  of  in  the  next  note),  according  to 
which  the  earnings  of  a  married  woman,  after  the  passing  of  the 
Act  (sect.  1),  personal  property  coming  to  her  iinder  an  intestacy, 
or  any  sum  of  money  not  exceeding  200/.  under  a  deed  or  will  (sub- 
ject to  the  trusts  of  any  settlement  afPecting  the  same)  (sect.  7),  and 
the  rents  and  profits  of  freehold,  copyhold,  or  customaryhold  prop- 
erty descending  upon  any  woman  married  after  the  passing  of  the 
Act  (sect.  8),  would  belong  to  her  to  her  separate  use. 

This  Act  was  afterwards  amended  by  "  An  Act  to  amend  the 
Married  Women's  Property  Act,  1870"  (37  &  38  Vict.  c.  50),  and 
both  Acts  have  been  consolidated,  amended  and  repealed  by  the 
Married  Women's  Property  Act,  1882  (45  &  46  Vict.  c.  75),  under 
which  in  effect,  where  a  woman  is  married  on  or  after  the  1st  Jan- 
uary, 1883,  or  where  the  title  of  property  accrues  to  her  after  that 
date  though  married  before  she  is  entitled  to  it  as  her  separate 
property  as  if  she  were  a  feme  sole.     (Sects.  1,  2,  5.) 

No  property,  therefore,  of  a  woman  affected  by  this  Act,  as  it  is 
her  separate  property,  can  give  rise  to  a  question  of  her  equity  to 
a  settlement. 

Since,  however,  cases  may  arise  not  coming  within  these  Acts,  it 
is  still  necessary  to  examine  the  subject  of  a  wife's  equity  to  a  set- 
tlement, and  in  doing  so  it  is  purposed  to  consider: — 

1.  Out  of  what  property  unaffected  by  the  Married  Women's 
Property  ^cts  she  can  claim  it.  2.  Rights  of  her  children  to  an 
interest  under  the  settlement.  3.  As  to  the  amount  of  the  wife's 
property  to  be  settled.  4.  As  to  the  mode  of  settlement.  5.  Waiver 
of  settlement  by  the  wife.  6.  What  will  defeat  or  bar  the  wife's 
equity  to  a  settlement.  7.  Wife  when  allowed  mainte- 
[  *  510  ]  Dance  by  Court  out  of  her  equitable  property  on  *  refusal 
of  her  husband  to  make  a  settlement.  8.  As  against 
whom  the  equity  to  a  settlement  is  binding. 

1.  Out  of  what  property  unaffected  by  the  Married  Woyneii's 
Property  Acts,  the  wife  can  claim  her  equity  to  a  settlement.] — 
Where  the  property  of  the  wife  is  equitable,  and  consequently  not 
recoverable  at  law,  it  is  clear  that  the  husband  or  his  assignees,  will 
only  obtain  it  upon  the  terms  of  making  a  settlement  upon  the  wife 
560 


MURRAY  V.   LORD  EUBANK.  *  511 

nnd  hoY  cLlldren,  if  slio  require  oi^o  to  bo  mado:  (Milner  v.  Colmer 
2  P.  WiDs.  0:^0);  [The  steps  must  bo  taken  for  a  Bottleruent  before 
the  liusbaxul  has  obtained  tbo  actual  possession  of  the  fund,  because 
tho  courts  will  not  compel  a  husband  who  has  obtained  i)ossession 
to  refund  tlio  property,  in  order  that  a  Bettlement  may  be  made: 
Pool  V.  Morris,  29  Ga.  374;  Rees  v.  Waters,  0  Watts,  90;  Mitchell 
V.  Sevier,  9  Humph.  14G;  Carleton  v.  Bank,  7  Ala.  34;  Wiekes  v. 
Clarke,  8  Paige,  161.]  and  a  legacy  is  not  deprived  of  its  equitable 
character  by  being  charged  on  land,  with  power  of  entry  and  re- 
ceipt of  tho  rents  and  profits:  Dnncnmbe  v.  Grecnacre,  28  Beav. 
472,  2  Do  G.  F.  &  Jo.  509,  overruling  Cooke  v.  Williams,  11  W.  K 
(V.-C.  S.),  504. 

And  where  an  equitable  estate  in  fee  descended  on  a  married 
woman,  tho  Court,  by  virtue  of  her  equity  to  a  settlement,  has  set- 
tled the  estate  on  her  during  her  life,  but  has  refused  to  interfere 
with  the  possible  estate  bv  curtesy  of  the  husband:  Smith  v.  Mat- 
theics,  3  De  G.  F.  &  Jo.  139. 

And  even  where  tho  property  though  in  its  nature  legal,  becomes 
from  collateral  circumstances,  the  subject  of  a  suit  in  equity,  it  ap- 
pears that  the  wife's  equity  to  a  settlement  \^ill  attach!  This 
is  clearly  laid  down  in  the  important  case  of  Sturgis  v.  Champneys, 
5  My.  &  Cr.  97.  There  the  provisional  assignee  of  Sir  Thomas 
Champneys,  an  insolvent  debtor,  whose  wife,  Lady  Champneys,  was 
entitled /or /icr ///e  to  rea/^w'ope?-/?/ of  which  the  legal  estate  was 
outstanding  in  mortgagees,  teas  obliged  to  file  a  bill  to  make  his  title 
(subject  to  the  incumbrances)  effectual.  Upon  Lady  Champneys 
claiming  her  equity  to  a  settlement,  it  was  contended  that  her  life- 
interest  in  the  estates  could  not  be  considered  as  an  equitable  inter- 
est merely  on  the  ground  that  tho  legal  estate  was  outstanding,  and 
that  the  Court  had  never  made  a  provision  for  a  wife  out  of  such 
an  interest  as  the  husband  in  that  case  had,  and  that  it  was  not  es- 
tablished that  the  wife's  equity  extended  to  the  rents  of  real  estate. 
Lord  Cottcnham,  however,  after  an  elaborate  examination  of  the 
authorities,  reversed  the  decision  of  Sir  L.  Shadwell,  V.  C.  (4  Sim. 
82),  and  held  the  wife  entitled  to  a  settlement  out  of  the  rents  of 
her  life-estate.  See  Bonfield  v.  Hassel,  32  Beav.  217;  Barnes  v. 
Robinson,  11  W.  R.  (V.-C.  S.)  276;  Fowke  v.  Draycott,  29  Ch.  D. 
996. 

It  seems,  however,  that  if  in  Sturgis  v.  Champneys,  tho  wife  had 
been  plaintiff  and  not  the  provisional  assignee,  she  would  not  have 
been  able  to  assert  any  right  to  a  settlement.  See  Gleaves  v.  Paine, 
1  De  G.  Jo.  &  Sm.  87,  where  Lord  Wcstbury,  C,  said  that, 
although  the  decision  of  *  Sturgisy.  Champneys  (5  My.  &  [  *  511  ] 
Cr.  97),  being  a  decision  of  the  Lord  Chancellor,  must  be 
followed,  yet  he  was  not  disposed  to  extend  it  any  further  than  the 
actual  decision  went,  and  that,  as  in  that  case  the  assignee  was 
plaintiff,  it  would  extend  tho  rule  very  much  to  recognise  the  doc- 
trine that  a  tvife  miglit  eome  here  CLsking  a  settlement  of  real  estate 

36   W^HITE  ON    EQUITY.  561 


*  512  MURRAY  V.  LORD  ELIBANK. 

belonging  to  the  husband  against  the  husband's  assignee,  which  the 
assignee  could  render  available  without  resorting  to  the  Court  of 
Chancery. 

Whether  a  wife  may  not  be  entitled  in  some  cases  to  an  equity 
of  settlement  out  of  a  legal  chose  of  action,  as  for  instance  a  debt, 
as  against  the  legal  right  of  her  husband,  is  perhaps  doubtful.  But 
see  Ruffles  v.  Alston,  lO  L.  R.  Eq.  539,  544,  546. 

Moreover,  whatever  may  be  the  right  of  a  married  woman  to  have 
a  provision  made  for  her  out  of  the  income  of  an  estate  of  which 
she  is  equitable  tenant  in  tail,  it  is  not  according  to  the  course  of 
the  Court,  or  indeed  in  its  power,  to  order  a  settlement  to  be  made 
of  the  estafeov  land  to  be  purchased  ivith  money  of  tvhich  the  married 
woman  is  equitable  tena^it  in  tail.  For  it  is  clear  that  the  equity  to 
a  settlement  attaches  upon  what  the  husband  takes  in  right  of  the 
wife,  and  not  upon  what  the  wife  takes  in  her  own  right,  and  the 
estate  tail  being  in  the  wife,  the  Court  has  no  power  to  order  a  set- 
tlement of  it  to  be  made,  or  to  render  such  a  settlement,  if  made, 
binding  and  effectual  against  the  wife:  Life  Association  of  Scotland 
V.  Siddal,  3  De  G.  F.  &^Jo.  271,  276. 

Where  copyhold  property  descended  in  fee  upon  a  married  woman, 
subject  to  a  covenant  entered  into  by  a  former  owner  upon  his  mar- 
riage to  surrender  it  to  certain  uses,  under  which,  had  the  surrender 
been  made,  the  married  woman  would  have  been  legal  tenant  in  tail, 
it  was  held  by  the  Lords  Justices  that  she  had  no  equity  to  a  settle- 
ment out  of  property  so  circumstanced:  Re  Gumming,  2  De  G.  F.  & 
Jo.  376. 

And  it  is  clear  that  she  has  no  equity  to  a  settlement  as  against 
the  assignees  for  value  of  her  husband's  interest  in  land  of  which  she 
is  seised  for  an  estate  of  inheritance  in  fee.  Durham\.  Crackles,  8 
Jur.  N.  S.  1174;  Life  Association  of  Scotland  v.  Siddal,  3  De  G.  F. 
&  Jo.  271;  Neivenham  Y.  Pemberton,  17  L.  J.  Ch.  991. 

Where,  however,  a  sum  of  money,  being  rent  of  real  estate  (not, 
as  it  seems,  equitable)  to  which  a  husband  was  entitled  jure  mariti, 
was  paid  into  Court  by  an  agent.  Sir  L.  Shadwell,  V.-C,  upon  the 
authority  of  Sturgisw.  Champneys  (d  My.  &  Cr.  97),  held  that  the 
assignee  of  the  husband  (who  was  insolvent)  was  not  entitled  to  it, 
without  a  settlement  upon  the  wife:  Freeman  v.  Fairlie,  11 
[  *  512]  Jur.  447,  and  see  Life  *  Association  of  Scotland  v.  Siddal, 
3DeG.  F.  &  Jo.  271.   . 
A  wife  will  also  be  entitled  to  a  settlement  out  of  her  trust  term 
in  land,  not  only  as  against  her  husband,  but  also  against  his  as- 
signee for  valuable  consideration.     Thus,  in  Hanson  v.  Keating,  4 
Hare,  1,  where  a  husband  and  wife  assigned,  by  way  of  mortgage, 
the  equitable  interest  of  the  husband  in  right  of  his  wife  in  a  term 
of  years,  the  mortgagee  filed  his  bill  against  the  husband  and  wife, 
and  the  trustee  of  the  legal  estate,  for  a  foreclosure  and  assignment 
of  the  term;  it  was  held  by  Sir  J.  Wigram,  V.-C,  upon  the  author- 
ity of  Sturgis  v.  Champneys  (5  My.  &  C.  97),  although  contrary  ta 
562 


MURRAY  V.  LORD  ELIBANK.  *  513 

his  own  opinion  independent  of  that  case,  that  the  wife  was  entitled 
to  a  provision  for  her  life,  by  way  of  settlement,  out  of  the  mort- 
gaffed  premises.  "  I  am  clear,"  observed  his  Honor,  "  that  I  am  not 
bound  in  this  case,  to  impose  upon  the  plaintiff  the  terms  required 
by  the  defendant,  only  because  he  is  plaintiff  (for  that  was  the  argu- 
ment at  the  bar).  The  question  is,  what  are  the  equitable  rights  of 
the  parties,  independently  of  their  relative  positions  on  the  record? 
Sir  Edward  Turner^s  Case,  1  Vern.  7,  if  it  be  law,  answers  this  ques- 
tion. Now  it  is  true,  that  some  judges  have  thought  tLo  resolutions 
in  that  case  questionable,  but  it  is  equally  true,  that  they  have  con- 
sidered it  as  binding  upon  all  courts  until  the  House  of  Lords  should 
alter  its  own  resolutions:  Pitt  v.  Hunt,  1  Vern.  18;  Jeivsonx.  Moiil- 
^on,  2  Atk.  417;  and  unless  I  am  altogether  under  a  mistake.  Sir 
Edward  Turner^s  Case,  has  always  been,  and  is  at  this  day,  considered 
law  by  conveyancers,  and  is  acted  upon  accordingly.  And  the  more 
strong  has  been  the  dissent  from  the  resolutions  in  that  case,  the 
more  do  the  judges  who  express  that  dissent  affirm  the  authority  of 
the  case  by  following  it.  I  believe  the  understanding  of  the  profes- 
sion, prior  to  the  decision  of  Sturgis  v.  Champneys,  to  have  been  that 
Sir  Edward  Turnei'^s  Case,  was  in  accordance  with  the  principles  of 
the  Court  and  I  advert  to  that  understanding  the  more,  not  only  be- 
cause the  Vice- Chancellor  of  England  concurs  in  it,  but  because  I 
know  the  learned  editor  of  Mr.  Roper's  book  on  the  law  of  Husband 
and  Wife  always  lamented  the  decision  in  Sturgis  v.  Champneys,  as 
having,  in  his  opinion,  unsettled  the  law.  In  some  cases  of  mere 
personalty  there  is  no  doubt  of  the  wife's  equity,  but,  prior  to  Stur- 
gis v.  Champneys,  the  opinion  of  the  profession  had,  I  believe,  be- 
come settled,  that  estates  in  land  were  not  subject  to  the  same  equity, 
upon  the  broad  and  important  principle  of  preserving  a  strict  anal- 
ogy between  legal  and  equitable  estates  in  land.  In  the  case  of 
Burdon  v.  Dean,  2  Ves.  jun.  607,  the  order  was  made  by 
consent;  *  and  Lord  Cottenhani  notices  that  circumstance  [  *513] 
in  Sturgis  v.  Chainj^neijs.  I  shall  not,  however,  decide  this 
case  without  attentively  reading  Stui'gis  v.  Champneys  in  private." 

On  a  subsequent  day,  his  Honor,  deciding  in  favour  of  the  wife, 
observed  that  he  did  so  in  deference  to  the  judgment  in  Sturgis  v. 
Champneys,  he  should  follow  it,  although,  if  that  case  were  out  of 
the  way,  he  should  probably  have  decided  otherwise. 

The  estate  of  a  feme  covert  tenant  in  tail  in  possession,  subject  to 
a  term  to  secure  a  jointure,  has  been  held  to  be  equitable  during  the 
continuance  of  the  term,  for  the  purpose  of  entitling  her  to  a  set- 
tlement on  a  bill  filed  by  her.  See  Woiiham  v.  Pemberton,  1  De 
a  &  Sm.  644. 

Although  the  Court  might  allow  the  wife  the  income  of  her  pro- 
perty, it  by  no  means  follows,  when  the  property  out  of  which  she 
claims  a  settlement  is  in  the  hands  of  a  mortgagee,  that  he  will  be 
allowed  by  the  Coiirt,  as  against  the  assignees  of  the  husband,  what 
he  may  have  paid  to  the  wife,  out  of  the  income  of  the  property. 

563 


*514  MURRAY  V.   LOKT)  ELITUNK. 

Thus,  in  Clarke  v.  Cook  (3  De  G.  &  Sm.  333),  a  husband  and  wife, 
by  deed  acknowledged,  demised  freeholds  of  the  wife  to  a  mortga- 
gee by  way  of  trust,  the  trusts  being  to  apply  the  rents  and  profits 
in  payment  of  certain  premiums  of  insurance,  and  of  the  interest 
on  the  mortgage  debt,  and  then  in  reduction  of  the  principal,  until 
it  should  bo  paid  off.  The  husband  took  the  benefit  of  the  Insol- 
vent Debtors'  Act.  It  was  held  by  Sir  J.  L.  Knight  Bruce,  Y.-C,  in 
a  suit  for  redemption,  instituted  by  the  assignee  of  the  husband 
against  the  mortgagee,  that  the  latter  was  chargeable  with  the  sur- 
plus rents  which  he  allowed  to  the  insolvent's  wife  for  her  main- 
tenance. "  I  cannot  help  suspecting,"  said  his  Honor,  "that  the 
wife  might  have  had  all  that  has  been  paid  to  her  if  a  proper  ap- 
plication had  been  njade  to  the  Court.  It  is  a  hard  and  peculiar 
case,  and  there  must  be  no  costs  on  either  side." 

"Where,  however,  a  person  entitled,  jure  mariti,  to  tho  legal  inter- 
est in  leaseholds,  mortgages  them,  tho  wife  has  no  equity  to  a  set- 
tlement thereout,  as  against  tho  mortgagee  seeking  foreclosure  or 
sale  {Hatcltell  v.  Eggleso,  1  Ir.  Cb.  Rep.  215),  but  if  the  proviso 
for  redemption  in  such  a  case  is  on  the  repayment  by  the  husband 
(who  has  become  insolvent),  and  his  wife,  of  the  sum  advanced,  the 
power  to  redeem  must  be  given  to  her  as  well  as  the  insolvent's 
assignee:  Hill  v.  Edmonds,  5  De  G.  &  Sm.  003. 

Although  it  was  once  doubtful,  it  seems  to  be  now  fully  estab- 
lished, that  a  wife  is  entitled  to  a  settlement  out  of  a  life  interest  in 
equitable  projoerty  to  which  her  husband  is  entitled  in  her  right,  as 
against  his  assignees,  iipon  his  becoming  bankrupt  or  insol- 
[  *  51 4]  vent.  Thus,  in  *  Lumb  v.  Milnes,  5  Ves.  517,  a  wife  hav- 
ing a  life  interest  in  the  dividends  of  fund,  was  held  en- 
titled to  a  settlement  as  against  the  assignees  of  her  husband,  who 
was  a  banla-upt.  The  same  was  held  also,  in  Broivn  v.  Clark,  3 
Ves.  166;  Jacobs  v.  Amyatt,  1  Madd.  376,  n. ;  and  Squires  v.  Ash- 
ford,  23  Beav.  132;  and  in  Sturgis  v.  Champneys,  5  My.  &  Cr.  97, 
which  has  been  already  noticed.  Lord  Cottenham  held,  that  the  wife 
was  entitled  to  a  settlement  out  of  the  rents  of  lands  devised  to  her 
for  life;  spe  also  Vaughan  v.  Buck,  1  Sim.  N.  S.  284;  Koeber  v. 
Sturgis,  22  Beav.  588. 

The  wife  is  also  entitled  to  a  settlement  or  maintenance  out  of 
her  equitable  life  interest  when  she  is  deserted  by  her  husband.  See 
Gilchrist  v.  Cator,  1  De  Gex  &  Sm.  188,  p.  150,  and  cases  rAted 
post,  p.  532. 

It  has,  however,  been  held  that  the  wife  is  not  entitled  to  a  set- 
tlement out  of  a  life  interest  ivhen  she  is  living  xvith  and  is  main- 
tained by  her  husband,  who  is  neither  bankrupt  nor  insolvent: 
Vaughan  v.  Buck,  13  Sim.  404,  sed  vide  Wilkinson  v.  Charlesivorth, 
Marsack  v.  Lyster,  10  Beav.  324.  [Udall  v.  Kenney,  3  Cowan,  591; 
Phillips  V.  Hassell,  10  Humph.  197.] 

Nor  is  the  wife,  it  seems,  entitled  to  a  settlement  out  of  property 
in  which  she  has  an  equitable  life  interest,  as  against  a  person  to 
564 


MURRAY  •«.  LORD  KLIHANK.  *  515 

whom  hor  husband  has  assigned  it  for  value  previous  to  his  insol- 
vency or  bis  desertion  of  hor:  Elliott  v.  Cordell,  5  Madd.  149;  Stan- 
ton V.  Hall,  2  Russ.  &  My.  175. 

So  also  in  Tidd  v.  Lister,  10  Hare,  140,  it  was  held  by  Sir  George 
Turner,  V.-C,  after  a  very  careful  examination  of  the  authorities, 
that  a  married  woman  whoso  husband  did  not  maintain  her,  was 
not  entitled,  as  against  a  particular  assignee  of  the  husband,  to  a 
settlement,  or  maintenance  out  of  the  income  of  the  real  and  per- 
sonal estate  to  which  she  was  entitled  inequity  for  her  life,  and  his 
decision  was  on  appeal  affirmpd  by  Lord  Cranicortli,  C,  who,  with 
reference  to  the  distinction  in  principle,  supposed  to  rest  between 
the  mode  of  dealing  with  the  purchaser  of  a  wife's  life  interest, 
and  the  purchaser  of  her  absolute  interest,  said,  "that  they  are 
altogether  satisfactory  to  my  mind,  I  am  not  prepared  to  say;  at 
the  same  time  they  are  certainly  not  without  weight,  and  considering 
the  authorities  are  all  ono  way,  I  think  it  would  be  very  inexpe- 
dient now  to  attempt  to  disturb  them."  See  3  Do  G.  Mac.  &  G. 
b57,  870;  see  aho  Durham  v.  Crackles,  11  W.  R.  (V.-C.  W.),  138;  Re 
Duffy's  Trust,  28  Beav.  386. 

With  regard  to  Elliott  v.  Cordell,  5  Madd.  149,  it  is  clear,  siuce 
the  decision  of  Stiffe  v.  Everett,  1  My.  &  Cr.  37,  that  the  assign- 
ment of  a  life  interest  of  a  married  woman  in  a  fund  not  settled  to 
her  separate^use,  could  not,  unless  it  came  within  the  pro- 
visions of  -  Malins'  Act  (20  &  21  Vict.  c.  57),  in  any  [*515] 
event,  bo  supported  beyond  the  period  of  the  joint  lives 
of  the  husband  and  wife.  Harley  v.  Harleij,  10  Hare,  'i^2h;  Stanton 
v.  Hall  (2  Russ.  &  My.  175),  differed  from  Elliott  v.  Cordell,  inas- 
much as  in  those  cases  the  interest  of  the  wife  was  determinable 
upon  the  death  of  her  husband.  In  re  Godfreifs  Trusts,  1  I.  R. 
Eq.  531.  Even  in  the  case  of  the  wife's  estate  of  inheritance,  the 
husband's  assignment  by  way  of  mortgage,  has  prevailed  to  the  ex- 
tent of  his  life  interest:  Durham  v.  Crackles,  Jl  AY.  R.  (V.-C.  W.) 
138. 

And  the  husband's  assignment  for  value,  when  maintaining  his 
wife,  of  income  to  which  ho  becomes  entitled  in  her  right,  will  bo 
effectual  to  deprive  her  of  her  equity  to  a  settlement  as  against  the 
assignee  for  value,  though  the  interest  of  the  wife  at  the  time  of 
the  assignment  was  reversionary:  Life  Association  of  Scotland  v. 
Siddal.  3  Do  G.  F.  &  Jo.  271,  276,  277;  In  re  Carr's  Trusts,  12  L. 
R.  Eq.  01)9. 

A  wife  is  entitled  to  a  settlement  out  of  property  to  which  she  be- 
colnes  entitled  before,  as  well  as  out  of  what  she  becomes  entitled 
to  after  marriage:  Barroic  v.  Barrow,  18  Beav.  529. 

The  Court,  however,  cannot  order  a  settlement  to  be  made  of  the 
reversionary  jiersonal  property  of  a  married  woman.  '  The  reason  of 
this  is,  that  the  right  to  the  settlement,  is  an  obligation  which  the 
Court  fastens,  not  upon  the  property,  but  upon  the  right  to  receive 
it,  and  if  the  right  attaches  at  all,  it  must  attach  with  all  its  inci- 

505 


*  516  MURRAY  V.  LORD  ELIBANK. 

dents,  one  of  which  is,  that  the  wife  waiving  it,  must  waive  it  by  her 
consent  in  Court,  which  she  cannot  do  in  the  case  of  reversionary 
personal  property:  Osborn  v.  Morgan,  9  Hare,  432,  434;  the  ques- 
tion, as  to  whether  a  wife  is  entitled  to  a  settlement  can  only  be  de- 
cided when  the  reversionary  property  falls  into  possession:  lb.,  and 
see  Taylor  v.  Austen,  1  Drew.  459,  464;  but  see  now  Malins'  Act 
(20  &  21  Vict.  c.  57),  and  the  Married  "Women's  Property  Act, 
1882,  s.  5. 

Upon  the  same  principle  where  the  husband  of  a  legatee  as  exe- 
cutor, is  indebted  as  a  defaulter,  to  the  testator's  estate,  and  has  no 
right  to  receive  any  part  of  the  assets,  in  right  of  his  wife,  his  wife 
can  claim  no  equity  to  a  settlement  in  respect  thereof.  See  Knight 
v.  Knight,  18  L.  R.  Eq.  487;  in  which  case  Hall,  V.-C,  observes, 
"  Where  a  testator  gives  a  share  in  his  property  to  a  married  woman 
and  appoints  her  husband  executor,  the  husband  becomes  primarily 
responsible  for  the  whole  estate,  and  the  distribution  of  the  assets 
must  proceed  on  that  footing.  The  defendant,  so  long  as  he  is  in- 
debted to  the  estate,  can  have  no  right  to  receive  in  right  of  his  wife 
any  part  of  the  assets,  and  consequently  no  equity  to  a 
[*516]  *  settlement  of  any  part  of  the  assets  can  arise  to  the 
wife." 

Where,  however,  there  is  a  fund  in  Court,  to  a  share  of  which  a 
married  woman  is  entitled,  in  actual  possession,  the  Court  in  an 
action  by  her  may  make  a  decree  or  declaration  for  a  settlement  in 
favour  of  her  or  her  children,  although  the  fund  be  not  distributable 
until  further  consideration  {In  re  Robinson's  Settled  Estate,  12  Ch. 
D.  188),  and  although  her  share  has  not  been  ascertained.     lb. 

2.  Rights  of  her  children  to  an  interest  under  the  settlement] — 
Whenever  a  woman  insists  upon  her  equity  to  a  settlement,  out  of 
property  to  which  she  is  absolutely  entitled,  and  not  out  of  a  mere 
life  interest,  it  will  always  be  extended  to  her  children,  although 
she  has  no  children  at  the  time,  and  a  reference  will,  as  in  Lady 
Elibank  v.  Montolieu,  be  directed  to  ascertain  what  is  a  proper  set- 
tlement to  be  made  upon  her  and  her  children:  (Johnson  v.  Johnson, 

1  J.  &  W.  472;  Re  Grant,  14  W.  R.  (V.-C.  S.),  191):  and  in  Con- 
ington  v.  Gillat,  W.  N.  Dec.  2,  1876,  p.  275,  the  children  of  a  former 
marriage  were  provided  for.  [A  wife  cannot  ask  for  a  settlement 
for  herself  alone  without  including  her  children:  Napier  u  Howard, 
8  Kelley,  193;  Andrews  v.  Jones,  10  Ala.  401;  Howard  v.  MofPatt, 

2  Johns.  Ch.  206;  but  as  it  is  a  personal  right  of  the  wife,  the  chil- 
dren cannot  ask  for  a  settlement  after  her  death:  Perry  on  Trusts, 
Sec.  645;  Martin  v.  Sherman,  2  Sand.  Ch.  341;  Bell  v.  Bell,  1 
Kelley,  637.] 

The  equity  to  a  settlement,  however,  is  strictly  personal  to  the 
wife.     If,  therefore,  she  dies  before  asserting  her  right,  her  chil- 
dren cannot  insist  upon  a  settlement.     Thus,  in  Scriven  v.  Tapley, 
2  Eden,  337,  where  a   man  after  the  death  of  his  wife,  leaving  a 
566 


MURRAY  V.  LORD  ELIBANK  *  517 

daughter,  filed  a  bill  to  obtain  the  payment  of  300^.,  to  which  his 
wife  was  entitled,  Lord  Nortlmujtori,  reversing  the  decision  of  Sir 
Thomas  Clarke,  M.  K.,  held  that  the  daughter  had  no  equity  to  a 
settlement  out  of  it.  "  The  equity  of  compelling  settlements,"  ob- 
served his  Lordship,  "first  arose  u[Kjn  the  husband's  coming  to  this 
court  for  assistance.  It  is  personal  to  the  ivife,  and,  if  carried  fur- 
ther, would  be  attended  with  ill  consequences  to  creditors.  There 
is  no  case  where  the  Court  has  refused  assistance  to  the  hus- 
band, after  the  death  of  the  wife,  upon  the  terms  of  his  making  a 
provision  for  the  children."  Sir  William  Grant,  it  will  bo  observed, 
when  Miin-ay  v.  Lord  Elibank  came  before  him,  cited  the  decision  of 
Sir  Thomas  SeiveU,  M.  R.,  in  Cockclw  Phipps,  1  Dick.  391,  in  sup- 
port of  the  decision  of  Sir  Thomas  Clarke,  which  he  seems  to  have 
preferred  to  that  of  Lord  Northington;  however.  Sir  Thomas 
Flamer,  M.  K,  in  his  elaborate  judgment  in  Lloyd  v.  Williams,  1 
Madd.  404,  said  that,  on  consulting  the  Registrar's  Book,  he  found 
the  point  never  arose  in  Cockel  v.  P/i/pps,  and  that  no  case  had 
touched  upon  the  decision  of  Lord  Northington  in  Scriven  v.  Tap- 
iey,  and  that  from  that  time  the  decisions  had  been  uniformly  ac- 
cording to  that  case,  and  that  it  would  indeed  have  been  surprising, 
if  so  correct  a  judge  as  Sir  Thomas  Sewell  should,  so  soon 
*  after  the  decision  in  Scriven  v.  Tapley,  have  acted  in  [  *  517  J 
direct  contradiction  to  it. 

The  wife,  therefore,  may,  at  any  time  before  the  settlement  is 
actually  completed,  icaive  her  right  to  it,  and  thus  defeat  the  inter- 
ests of  her  children:  Hodgcns  v.  Hodgens,  11  Bligh,  N.  S.,  104. 
fThe  waiver  by  the  wife  takes  place  on  a  separate  examination  of 
the  wife,  by  which  it  is  ascertained  that  her  consent  is  given  of 
her  own  free  will,  and  is  not  obtained  from  her  by  fraud  or  force. 
Examinations  of  a  like  character  are  prescribed  by  statute  in  some 
States  where  a  conveyance  of  the  real  estate  of  a  feme  covert  is 
made.] 

All  the  cases  concur  in  showing  that  children  have  no  right  to  a 
settlement  "independent  of  contract  or  decree'^:  per  Sir  Thomas 
Plumer,  V.-C,  in  Lloyd  v.  Willia7ns,  1  Madd.  467. 

"When  the  wife  has  entered  into  a  contract,  or  has  obtained  a  de- 
cree for  a  settlement,  the  interests  of  the  children  will  not  be  de- 
feated if  she  die,  without  waiving  it.  Thus  in  Lloyd  v.  Williams, 
1  Madd.  450,  the  wife  of  a  bankrupt  being  entitled  to  a  legacy,  she 
claimed  her  right  to  a  settlement  out  of  it,  and  an  agreement  was 
thereupon  entered  into  between  the  assignees  and  the  executor, 
whereby,  in  consideration  of  a  sum  to  be  paid  to  the  assignees,  a 
settlement  was  to  bo  made  upon  the  wife  and  her  children.  The 
bankrupt  obtained  his  certificate  in  the  lifetime  of  his  wife, 
who  died  before  any  settlement  was  made  in  pursuance  of  the 
agreement,  leaving  an  only  daughter.  Sir  Thomas  Plumer,  V.-C, 
held,  that  the  death  of  the  mother  did  not  disappoint  the  claim  of 
the  child. 

567 


*  518  MUr.RAY  V.  LORD  ELIBANK. 

So  in  Lady  Elihank  v.  Montolieu,  and  MurraT/  v.  Lord  Elihanky 
where  by  a  decree  a  reference  was  made  to  approve  of  a  proper  set- 
tlement, and  tbo  wife  died  without  waiving  it  (which,  as  before  ob- 
served, she  might  have  done),  her  children,  by  supplemental  bill, 
successfully  claimed  the  benefit  of  the  decree,  although  no  proposals 
for  a  settlement  had  been  made,  and  although  they  had  not  been 
mentioned  in  the  decree.  See  Rowe  v.  Jackson,  Dick.  G04;  Groves 
V.  Pcrkyns,  6  Sim.  584;  S.  C,  Groves  v.  Clark,  1  Kee.  132.  [In 
some  cases  it  has  been  held  that  the  equity  of  the  children  attached 
upon  the  filing  of  the  bill  or  petition  of  the  wife;  and  that  if  she 
died  before  further  proceedings,  the  children  might  still  be  protected: 
Helms  V.  FranciscuB,  2  Bland,  f.81;  Hill  v.  Hill,  3  Strob.  Eq.  94; 
Mumford  v.  Murray,  1  Paige,  621.] 

But  if  no  mention  is  made  of  the  children  of  the  marriage,  the 
omission,  if  it  has  been  long  acquiesced  in,  will  not  be  supplied. 
Thus  in  Johnson  v.  Johnson,  1  J.  &  W.  479,  where  the  interest  of 
a  fund  in  court  was  directed  to  bo  paid  to  the  separate  use  of  a  mar- 
ried woman  for  life,  with  liberty  for  those  entitled  on  her  death  ta 
apply,  Sir  Thomas  Plumer,  M.  K.,  said,  that  the  Court  ought  to 
have  referred  it  to  the  Master  to  approve  of  a  proper  settlement, 
instead  of  making  that  order;  but  that,  as  it  was  made  thirty-four 
years  ago,  it  could  not  then  be  altered. 

And  where  the  steps  taken  in  a  suit  are  such  as  to  bind  the  hus- 
band, to  allow  a  settlement,  the  children  after  the  death  of  the 
mother  may  insist  upon  one,  although  she  may  not  have  been  bound 
like  her  husband.  See  Lloyd  v.  Mason,  5  Hare,  149,  there  a  married 
woman  entitled  to  a  legacy  appeared  by  her  counsel  at 
[  ^^^518]  the  *  hearing  of  the  cause,' and  claimed  her  equity  to  a 
settlement  out  of  the  fund.  The  legacy  was  directed  to  be 
carried  to  the  separate  account  of  the  husband  and  wife.  The  hus- 
band was  a  bankrupt,  and  his  assignee  sold  his  interest  in  the  legacy. 
The  solicitors  for  tho  purchaser,  and  for  the  wife,  agreed  to  refer 
the  claim  of  the  wife  to  their  counsel;  and  the  counsel  determined 
that  she  was  entitled  to  a  settlement  of  a  moiety,  subject  to  tho 
costs.  Before  any  further  steps  were  taken,  the  wife  died,  leaving 
children.  It  was  held,  by  Sir  James  Wigram,  V.-C,  that  tho  hus- 
band, and  those  claiming  under  liim,  were,  by  the  steps  which  had 
been  taken,  bound  to  allow  a  settlement  of  part  of  tho  fund  upon 
the  wife  and  children;  and  that,  upon  the  death  of  the  wife,  the 
children  were  entitled  to  the  portion  which  would  have  been  settled. 

But  it  has  been  decided  that  if  a  married  woman  dies  without 
having  obtained  a  decree  for  a  settlement,  her  children,  even  al- 
though she  may  have  filed  her  bill  claiming  a  settlement,  will  have 
no  rFght  to  file  a  supplemental  bill  to  enforce  one:  Wallace  v. 
Auldjo,  2  Drew.  &  Sm.  216;  1  De  G.  Jo.  &  Sm.  643.  And  see  De 
la  Garde  v.  Lempriere,  6  Beav.  344;  Baker  v.  Bayldon,  8  Hare, 
210,  overruling  Steinmetz  v.  Halthin,  1  G.  &  J.  64.  [See  note 
number  9.  In  after  cases  it  has  however  been  held  that  the  rights 
568 


MURRAY  V.  LOUD  ELIBANK.  *  510 

of  Iho  children  to  havo  tbo  sottlomont,  attach  only  after  decree: 
Perry  on  Trusts,  Sec.  045.] 

Moreover,  although  tho  husband,  in  the  event  of  his  ^vife'8  death, 
is  bound  by  a  contract  or  decree  for  a  settlement,  yet  the  wife  can, 
at  any  time  before  it  is  actually  made,  tcaive  her  equity  to  a  settle- 
ment: Fenner  v.  Taylor,  2  liuss.  &  My.  190,  where  Lord  Broug- 
ham, C.  reversed  tho  decision  of  Sir  Jokn  Leach,  V.-C,  reported  1 
Sim.  ]C9.  See  also  i'"e?mer  v.  Taylor,  2  Rush.  &  My.  195;  Bald- 
ivinx.  Baldivin,  5  Do  G.   &  Sm.  ^]19;  Loveit  v.  Lorelt,  Johns.  118. 

But  if  tho  wife,  upon  tho  bankruptcy  of  her  husband,  established 
her  equity  to  a  settlement,  as  against  tho  assignees,  she  will  not  be 
allowed  afterwards  to  waive  it  in  favour  of  her  husband,  so  as  to 
defeat  the  rights  of  her  children,  though  she  might  do  bo  in  favour 
of  the  assignees:     Barker  v.  Lea,  G  Madd.  380;   Whittem  v.  Saxvyer, 

1  Beav.  593. 

The  right  of  tho  children  has,  moreover,  been  defeated  by  the 
divorce  of  the  mother  after  she  had  been  declared  on  petition  enti- 
tled to  a  settlement  out  of  her  fund  in  Court  to  the  separate  ac- 
count of  herself  and  her  husband,  and  she  was  held  to  bo  entitled 
to  payment  of  the  fund  as  a  feme  sole:  Heath  v.  Lewis,  13  W.  R. 
129,  4  Giff.  G65. 

3.  As  to  the  amount  of  the  wife's  property  to  he  settled.'] — When 
the  husband  is  solvent,  the  amount  to  be  settled  upon 
the  wife  and  children  depends  generally  upon  *  arrange-  [  *  519  J 
ments  entered  into  between  the  husband  and  wife.  And 
as  we  shall  hereafter  state  more  fully,  if  when  solvent  he  declines 
to  agree  to  a  settlement,  the  Court  will,  in  general,  provided  that 
he  has  been  guilty  of  no  misconduct,  allow  him  to  receive  the  in- 
come of  her  property  (post,  p.  530). 

The  amount  however  of  tho  wife's  property  which  is  to  be  settled, 
is  most  frequently  discussed  in  Court  when  the  husband  has  become 
either  bankrupt  or  insolvent  In  such  cases  the  old  rule  in  general 
was,  that,  in  the  absence  of  special  circumstances,  one  half  of  the 
wife's  property  should  be  settled  upon  her  and  her  children,  and 
the  other  lialf  goto  the  husband  or  his  assignees:  Jeicson  v.  Moulson, 

2  Atk.  4  23;  Worrall  v.  Marlar,  1  Cox,  153;  2  Dick.  047;  Brown  y. 
Clark,  3  Ves.  i  GO ;  Bagshaw  v.  Winte7\  5  Do  G.  &  Sm.  400 ;  and  see 
Dankley  v.  Duukley,  2  Do  G.  Mac.  6c  G.  390;  Re  Groves'  Tnist,  3 
Giff.  5/5;  Lea  v.  Church,  3  W.  R.  603;  Spirett  v.  Willows,  1  L.  R. 
Ch.  App.  520. 

In  modern  times  that  rule  has  been  considerably  relaxed,  the  di- 
vision of  tho  fund  being  left  more  in  the  discretion  of  the  Court, 
which,  taking  into  consideration  the  amount  of  the  wife's  fortune 
already  received  by  tho  husband,  or  any  previous  settlement  vvhich 
may  have  been  made,  the  husband's  ill-conduct  or  insolvency,  may 
settle  a  large  proportion  of  the  fund.  See  Green  v.  Otfe,  1  S.  &  S, 
250;  Na})ier  v.  Napier,  1  D.  &  W.  407;  Aubrey  v.  Brown,  4  W.  R. 

569 


*  520  MURRAY  V.  LORD  ELIBANK. 

425;  [Perry  on  Trusts,  Sec.  636.  If  there  has  been  misconduct  on 
the  part  of  the  husband,  the  whole  fund  has  in  some  cases  been 
settled  on  the  wife,  and  the  court  is  especially  inclined  to  order  this 
where  the  husband  has  expended  a  large  part  of  his  wife's  fortune 
and  the  remaining  sum  is  barely  sufficient  to  support  the  wife  and 
children,  or  if  the  husband  has  married  a  ward  of  the  court  without 
permission  :  Browning  v.  Headly,  2  Rob.  (Va.)  340  ;  Bowling  u 
Winslow,  5  B.  Mon.  31  ;  Barron  v.  Barron,  24  Vt.  375.]  and  in 
Coster  V.  Coster,  9  Sim.  597,  where,  a  husband  having,  without 
sufficient  cause,  separated  from  his  wife,  leaving  her  unprovided  for, 
three-fourths  of  a  fund  in  Court,  arising  from  property  bequeathed 
to  the  wife,  was  ordered  by  Sir  L.  Shadivell,  V.-C,  to  be  settled  on 
her  and  her  issue  generally  and  the  remaining  fourth  to  be  paid  to 
the  husband.  See  also  Napier  v.  Napier,  1  D.  &  W.  407;  Ex  parte 
Pugh,  1  Drew.  202;  Vauglian  v.  Biick,  1  Sim.  N.  S.  284;  Spirett 
T.  Willows,  1  L.  R.  Ch.  App.  520;  and  see  In  re  SuggitVs  Trusts,  3 
Xi.  R.  Ch.  App.  215,  where  two-thirds  were  settled. 

It  was   at  one  time  laid  down  by   a  very  careful  judge  that  the 
€ourt  would  never  settle  the  whole  of  the  property  upon  the  wife, 
even  where  the  husband  was  bankrupt  (Beresford  v.  Hobson,  1  Madd. 
362).     That  seems,  however,  to  have  been  done,  perhaps  by  con- 
sent, in  the  previous  case  of  Jacobs  v.  Amyatt,  1  Madd.  370  n. ;  also 
in  the  subsequent  case  of  Brett  v.  Greenwell,  3  Y.  &  C,  Ex.  Ca.  230, 
where  the  husband  had  taken  the  benefit  of  the  Insolvent  Debtors' 
Act,  Alderson,  B.,  held  the  wife  and  her  children  entitled  to  the 
whole  of  the  fund,  laying  weight  upon  the  distinction  that  formerly 
existed  between  bankruptcy  and  insolvency,  a  distinction 
[*520]  deemed  ill  founded   by  Sugden,  *  L.   C,   in  Napier  v. 
Napier,  1  D.  &  W.  407. 
Subsequent  decisions  have  made  it  clear  that  under  special  cir- 
cumstances the  Court  will,  in  its  discretion,  settle  the  whole  of  the 
funds,  belonging  to  the  wife  upon  her,  as  for  instance  when  the 
husband  has  become  bankrupt,  and  has  already  received  a  co^nsider- 
able  fortune  from  his  wife  (Gardner  v.  Marshall,  14  Sim.  575  ;  Re 
Merryman's   Trust,   10  W.  R.  (V.-C.   K),  334;  Smith  v.   Smith,  3 
<jiff.  121),  or  where  he  is.  insolvent  and  has  made  no  settlement  on 
her  {Francis  v.  Brooking',  19  Beav.  347  ;  Scott  v.   Spashett,  3  Mac. 
&  G.  599;  Inre  CordwelVs  Estate,  20  L.  R.  Eq.  644),  even  as  against 
a  purchaser  for  value  from  the  assignees  of  the  husband    (lb.),  or 
as  against  his  own  assignee  for  value  {Marshall  v.  Fowler,  10  Beav. 
249;  Re  Welchman,  1  GifiF.  31  ;  Buncombe  v.    Greenacre,29  Beav. 
578);  except  in  the  case  of  an  assignee  for  value  of  a  life  interest  of 
the  wife  ( Tidd  v.  Lister,  3  De  G.  Mac.  &  G.   857,  and  see  ante,  p. 
514),  or  of  the  accumulated  arrears  of  past  income  of  her  real  or 
personal  property:  Newman  v.  Wilson,  31   Beav.  34  ;  In  re  Carr's 
Trusts,  12  L.  R.  Eq.  609  ;  but  see  Life  Association  of  Scotland  v. 
Siddal,  3  De  G.  F.  &  Jo.  271. 

There  will  also  be  a  stronger  disposition  to  settle  the  whole  fund 

570 


MURRAY  V.  LORD  KLIBANK.  •  521 

Upon  the  wife  when  it  is  Hraall  and  barely  sufficient  for  a  provision 
for  the  wife  and  children  (hi  re  Kmcaicfs  Trusts,  10  Jur.  100  ;  1 
Drew.  320;  Jie  Hooper's  Trusts,  0  \\.  K.  (V.-C.  \V.)824);  or  where 
tliere  has  been  midconduct  on  the  part  of  the  husband,  as  where  he 
has  deserted  or  behaved  cruelly  to  his  wife,  and  does  not  afl'ord  her 
the  means  of  support  (Dun/cley  v.  Dunkley,  2  Do  Gex,  Mac.  &  G. 
390  ;  In  re  Cutler,  14  lieav.  220  ;  Gent  v.  Harris,  10  Hare,  383  ; 
Layton  v.  Layton,  1  Sm.  &,  Gifl'.  170;  Ee  Disney,  2  Jur.  N.  S.  200; 
Koeber  v.  Sturgis,  22  Beav.  588;  Re  Ford,  32  Beav.  021;  Boxall  v. 
Boxall,  27  Ch.  D.  220),  or  where  a  long  time  has  elapsed  since  the 
husband  became  bankrupt  or  insolvent,  the  probability  being  that 
the  husband's  debts  had  been  written  off  by  his  creditors  as  paid,  or 
whore  by  reason  of  the  amount  of  his  debts  little  benefit  would  be 
likely  to  accrue  to  the  creditors  by  taking  anything  fi-om  the  wife, 
especially  where  there  is  a  likelihood  of  its  being  all  absorbed  by 
costs:  Taunton  v.  Morris,  11  Ch.  D.  779.  But  when  negotiations 
had  been  carried  on  between  the  parties  for  several  years,  which 
had  involved  the  assignee  in  considerable  expenses,  three  fourths 
only  of  the  fund  instead  of  the  whole  were  settled:  Walker  v.  Drury 
17  Beav.  482. 

And  it  seems  that  as  against  the  husband  or  his  general 
assignee,  there  is  no  distinction  as  to  the  *  amount  to  bo  [  *521  ] 
settled,  whether  the  married  woman  has  an  absolute  in- 
terest or  a  mere  life  interest  in  property.  See  Taunton  v.  Man  is, 
11  Ch.  D.  779,  8  Ch.  D.  453,  wiiere  the  husband,  having  become 
insolvent  without  assets,  and  having  made  no  settlement  upon  his 
wife,  she  was  held  entitled  to  have  the  whole  of  her  life  interest  in 
property  not  given  to  her  separate  use,  settled  upon  her. 

By  a  decree  of  judicial  separation,  the  wife's  choses  in  action  not 
reduced  into  possession  at  the  date  of  the  decree  become,  under  the 
Divorce  and  Matrimonial  Causes  Act  (20  &  21  Vict.  c.  85),  s.  25, 
her  absolute  property  as  if  she  were  a  feme  sole.  Where,  therefore, 
a  wife  instituted  a  suit  to  enforce  her  equity  to  a  settlement  of  a 
trust  fund,  and  while  the  suit  was  pending  she  obtained  a  decree  of 
judicial  separation  from  her  husband  on  the  ground  of  cruelty, 
Lord  Romilly,  M.  R.,,  ordered  the  fund  to  be  paid  to  her,  and  refused 
the. husband  his  costs:  Johnson  v.  Lander,  7  L.  II.  Eq.  228.  See 
also  In  re  Coward  and  Adavi's  Purchase,  20  L.  R.  Eq.  179. 

4.  As  to  the  mode  of  settlement.^ — With  regard  to  the  general 
nature  of  the  settlement  which  the  Court  will  direct  to  be  made,  it 
seems  to  be  clear,  that  in  the  absence  of  special  circumstances,  the 
income  of  a  personal  fund  will  be  given  to  the  wife  to  her  separate 
use  for  life,  without  power  of  anticipation,  with  an  exclusive  power 
of  appointment  by  deed  or  will  among  her  children  (Oliver  \.  Oliver, 
10  Ch.  D.  705,  but  see  In  re  Gowan,  17  Ch.  D.  778),  remainder  to 
her  children  of  the  present  or  any  future  marrige,  who  being  sons 
shall  attain  twenty-one,  or  being  daughters  shall  attain  that  age 

571 


*  522  MURRAY  V.  LOUD  ELIBANK. 

or  marry  (Croxfon  v.  May,  9  L.  R.  Eq.  408,  409;  Gent  v.  Harris, 
10  Hare,  383,  384;  Francis  v.  Brooking,  19  Beav.  3l0);  and 
if  there  should  bo  no  such  children,  then,  in  the  absence  of  special 
circumstances,  the  Court  will  not  defeat  the  legal  right  of  the  hus- 
band, but  give  the  fund  to  him  whether  he  survives  his  wife  or  not 
{Croxfon  v.  Maij,  9  L.  R.  Eq.  408;  Carter  v.  Taggart,  1  De  G.  Mac. 
&  G.  280.  289,  not  following  on  this  point,  In  re  SuggitVs  Trusts,  3 
L.  R.  Ch!  App.  215),  or  his  particular  assignee  for  value  {Carter  v. 
Taggart,  1  De  G.  Mac.  &  G.  28G;  and  see  Form,  of  Order,  5  De.  G. 
&  Sm.  55;  In  re  Tubb's  Estate,  8  W.  R.  (V.  C.  K),  270;  Ward  v. 
Yates,  1  Drew.  &Sm.  80;  Spirett  v.  WiUou-s,  13  W.  R.  (V.  C.  S.), 
1034,  1  L.  R.  Ch.  App.  520, 4  m  407,  411),  or  general  assignees  {Ex 
parte  Piigh,  1  Drew.  202;  Gent  v.  Harris,  10  Hare,  383,  384), 
absolutely;  there  will  also  in  general  be  inserted  the  usual  powers 
of  maintenance,  accumulation  and  advancement  {Croxton  v. 
[  *  522]  '••  May,  9  L.  R.  Eq.  404),  except  where  the  fund  is  under  the 
control  of  the  Court,  when  they  are  unnecessary.  {Smilhers 
V.  Green,  2  Seton's  Decrees,  G75,  4th.  ed.) 

The  form  of  settlement  in  such  cases  was  very  fully  discussed  in 
Spirett  v.  Willows,  4  L.  R.  Ch.  App.  407 ;  and  see  abstract  of  settle- 
meut*there  ordered,  lb.  p.  411,  approved  of  in  Croxton  v.  May.  9  L. 
R.  Eq.  404,  409;  and  Walsh  v.  Wason,8  L.  R.  Ch.  App.  482;  2 
Seton's  Decrees,  Q'lS,  Form  5,  4th  ed.,  where  two-thirds  was  settled 
by  order  without  deed. 

Where  the  husband  assents  to  the  whole  of  the  fund  belonging  to 
the  wife  being  settled,  in  the  absence  of  special  circumstances,  such 
as  bankruptcy,  misconduct,  or  desertion  on  the  part  of  the  husband, 
a  qualified  life  interest  will  be  given  to  him  in  the  fund.  The 
proper  form  of  settlement  in  such  a  case  being  to  the  wife  for  her 
separate  use  without  power  of  anticipation  for  life,  remainder  to  the 
husband  during  his  life,  or  until  he  becomes  bankrupt  or  attempts 
to  alien  or  incumber,  remainder  to  such  of  the  children  of  the  wife 
by  her  present  or  future  husband  as  being  sons  shall  attain  twenty- 
one,  or  being  daughters  shall  attain  that  age  or  marry  with  con- 
sent of  guardians,  if  more  children  ihan  one  as  tenants  in  common, 
and  in  default  of  children  attaining  a  vested  interest,  in  trust  for  the 
husband  absolutely:  Smiihers  v.  Green,  2  Seton's  Decrees,  675,  4th  ed. 

The  fact  of  the  husband  having  assigned  his  interest,  or  having 
become  bankrupt  or  insolvent,  or  of  the  wife's  relations  being  in 
humble  circumstances,  will  not  be  considered  as  sufficient  reasons 
for  deviating  from  the  general  rule,  so  as  in  default  of  issue  to  give 
the  wife  a  general  power  of  appointment,  or  in  default  of  appoint- 
ment to  settle  the  property,  to  the  exclusion  of  the  husband  or  his 
general  or  particular  assignees,  upon  the  next  of  kin  of  the  wife: 
Carter  v.  Taggart,  1  Do  G.  Mac.  &  G.  286,  overruling  the  decision 
of  Sir  James  Parker,  V.-C,  5  De  G.  &  Sm.  49;  Bagshaiu  v.  Winter, 
lb.  466. 

Where  the  wife's  real  property  had  been  mortgaged  by  herself  and 

57-2 


MURRAY  2;.  LORD  ELIBANK.  *  5*23 

her  husband,  in  a  suit  by  tho  wifo  for  a  settlement  of  tho  equity  of 
redemption,  and  for  redenjj)tion  as  against  tho  mortt^at^eo  and  fore- 
closure against  her  husband  and  his  assitrnees  who  had  disclaimed; 
the  decree  made,  was  ''  that  upon  the  plaintiff  redeeming  tho  mort- 
gaged premises,  the  same  be  settled  (llio  defendant  A\.,  the  bus- 
band,  by  his  counsel  consenting)  upon  trust  for  the  plaintiff  for  her 
separate  use  during  her  life,  with  remainder  to  her  children  as  she 
shall  by  deed  duly  executed,  or  by  her  last  will  appoint,  and  in  de- 
fault of  appointment  in  trust  for  her  children  oqnally;  and 
in  case  the  plaintiff  shall  die  without  *leaving  any  children,  [  *  523] 
then  in  trust  for  the  plaintiff  and  her  heirs  absolutely  (such 
settlement  or  reconveyance  to  be  approved  by  the  judge);  but  in 
default  of  tho  plaintifit"  redeeming  tho  mortgaged  premises  as  afore- 
said, let  the  plaintiff's  bill  be  dismissed  as  against  P.  (tho  mort- 
gagee) with  costs,  to  be  taxed,  &c.,  and  paid  by  B.  the  next  friend 
of  the  plaintiff":  Gleaves  v.  Paine,  1  De  G.  j/&  Sm.  87,  08;  2  Set. 
Decrees,  G74,  4th  ed. 

Where  an  intestate's  equitable  estate  in  fee  had  descended  on  a 
married  woman,  there  was  a  declaration  that  it  ought  to  be  settled 
in  trust  for  her  during  her  life  for  her  separate  use  free  from  antici 
pation — as  to  a  Inisiness  ihen  being  carried  on,  with  remainder  to 
her  children;  as  to  the  freehold  house  and  farm  during  her  life 
only  (so  as  not  to  interfere  with  her  husbands  possible  tenancy  by 
the  curtesy)  with  a  direction  that  all  proper  and  necessary  deeds  and 
instruments  for  the  purpose  of  carrying  into  effect  tho  above  declar- 
ation and  decree  should  be  settled  by  the  judge;  the  costs  of  all 
parties  of  and  incident  to  the  preparation,  approval  and.  execution 
thereof  to  be  raised  and  paid  out  of  tho  property  to  be  comprised 
therein;  Smith  v.  Mattheivs,  3  De  G.  F.  &  J.  139,  154;  2  Seton  on 
Decrees,  674,  4th  ed. 

As  to  the  separate  use  of  property  of  a  married  woman  in  real 
estate  descended  on  her  under  the  Married  Women's  Property  Act, 
1870  (33  &  34  Vict.  c.  93),  and  the  Married  Women's  Property  Act, 
1882  (45  &  4G  Vict.  c.  75),  respectively;  see  p.  509,  ante,  and  note 
to  Hulme  v.  Tenant,  post,  pp.  555 — 557. 

In  order  to  avoid  the  expense  of  a  settlement  where  tho  fund  is 
small,  it  will  bo  ordered  to  be  brought  into  Court  (Bagshawv.  Win- 
ter, 5  De  G.  &  Sm.  4G8),  if  not  there  already,  and  the  Court  will 
direct  the  dividends  to  bo  paid  to  tho  wife  for  her  separate  use  for 
life,  and  either  declare  the  trusts  after  her  death  (lb.,  and  see 
Watson  v.  Marshall,  17  Beav.  363;  Walker  v.  Driiry,  17  Beav.  484; 
Wright  v.  King,  18  Beav.  461);  or  give  liberty  to  the  persons  en- 
titled at  her  death  to  apply:  In  re^ Cutler.  14  Beav.  220,  222;  and 
see  Smithers  v.  Green,  ante,  pp.  521,  522.  [In  some  American 
cases,  the  courts  have  compelled  a  settlement  when  the  suits  brought 
to  recover  the  property  were  in  the  common  law  courts:  Corley  v. 
Corley,  22  Ga.  178;  Dearin  v.  Fitzpatrick,  Meigs,  551;- Martin  v. 
Martin,  1  Hoff".  462;  Fry  v.  Fry,  7  Paige,  461.] 

573 


*  624  MURRAY  V.  LORD  ELIBANK. 

5.  Waiver  of  Settlement  by  the  icife.^ — If  a  woman  wish  to  waive 
her  equity  to  a  settlement,  her  consent  to  her  husband  having  her 
property  must  be  formally  taken  upon  her  examination  in  Court: 
Beaumont  v.  Carter,  32  Beav.  580. 

Where,  however,  a  married  woman  upon  being  examined,  ex- 
pressed a  wish  that  part  of  the  fund  to  which  she  should  be  enti- 
tled should  be  retained  in  Court,  and  the  income  paid  to  her  with 
liberty  for  her  to  apply  for  payment  of  the  capital  at  a 
[  *  524  ]  future  *  period,  if  she  desired  it,  the  Court  made  the  or- 
der to  carry  out  her  wish :  Re  Craddock'' s  Trusts,  W.  N. 
1875,  p.  187. 

In  general,  if  the  wife  is  abroad,  her  consent  to  payment  of  the 
fund  to  her  husband  must  be  taken  by  commission  issuing  from  the 
Court  {Tasbia^gh's  Case,  1  V.  &  B.  507;  Gibbons  v.  Kibbey,  10  _W. 
R.  (V.-C.  K),  55;  Ireland  v.  Trinbaith,  14  W.  R,  (V.-C.  S.)  2/5), 
or  from  a  competent  Court  abroad:  Campbell  v.  French,  3  Ves.  323. 
However,  in  the  case  of  Minet  v.  Hyde,  2  Bro.  C.  C.  663,  it  was  or- 
dered that  the  married  woman  should  appear  before  some  of  the 
plaintiffs  and  a  magistrate  of  Breda,  to  be  privately  examined  in 
the  French  or  German  language,  as  to  her  consent,  and  the  examin- 
ation attested  by  notaries  public,  and  translated  on  oath.  And  see 
Bourdillon  v.  Adair,  3  Bro.  C.  C.  237;  Parsons  v.  Dunne,  Belt's 
Suppl.  to  Ves.  276. 

In  order  that  the  examination  may  be  such  that  the  free  and  un- 
biased wishes  of  the  wife  may  be  ascertained,  neither  her  husband 
nor  his  solicitor  nor  any  persons  connected  with  him  ought  to  be 
present  {In  Re  Bendyshe,  3  Jur.  N.  S.  727),  and  the  examination 
cannot  be  dispensed  with,  by  reason  of  her  wishes  having  been  as- 
certained by  the  trustees:  Re  Sivan,  2  H.  &  M.  34. 

The  Court  cannot,  in  the  absence  of  fraud  or  compulsion  on  the 
part  of  the  husband,  refuse  to  take  the  wife's  consent  (  Willats  v. 
Cay,  2  Atk.  67;  Wright  v.  Rutter,  2  Ves.  Jun.  673,  Qll ;  Longbottom 
v.  Pearce,  3  De  G.  &  J.  545,  and  Biddies  v.  Jackson,  lb.  544),  even 
when  it  appears  the  wife  a  ward  of  Court,  married  the  day  after 
she  came  of  age:     White  v.  Herrick,  4  L.  R.  Ch.  App.  345. 

The  consent  of  a  married  woman  will  not  be  taken  until  the 
amount  of  the  fund  is  ascertained  {Edmunds  v.  Toivnshend,  1  Anst. 
93;  Jernegan  v.  Baxter,  6  Madd.  32;  Sperling  v.  Rochfort,  8  Ves. 
180;  Godber  v.  Laurie,  10  Price,  152;  Moss  v.  Dunlop,  8  W.  R.  39), 
except  perhaps  where  it  is  only  liable  to  diminution  by  the  deduc- 
tion of  unascertained  costs,  the  taxation  of  which  has  been  directed 
{Packer  v.  Packer,  1  Coll.  92);  in  which  case  her  consent  refers  to 
the  residue  of  the  fund  after  such  payment:  Musgrove  v.  Flood,  1 
Jur.  N.  J.  1086. 

Nor  will  the  consent  be  binding  upon  a  married  woman  if  made 

under  a  mistake.     Thus,  where  a  married  woman  consented  to  her 

husband  receiving  the  whole  fund,  being  ignorant  that  the  effect  of 

his  previous  insolvency  (of  which  the  Coux't  was  not  informed) 

574 


MURRAY  V.  LORD  ELIBANK.  •  626 

would  be  to  give  it  to  his  assignees,  the  Court  ordered  the  whole 
fund  to  be  settled.  A  consent  given  under  these  oircuinstances  is 
not  such  as  would  have  been  taken,  if  the  Court  had  known 
the  facts;  it  would  have  *  inquired  and  fully  explained  the  [  *  525  } 
effect  of  the  consent  to  the  married  woman.  It  is  not  a 
formal  but  a  substantial  objection;  for  it  is  the  duty  of  the  Court 
to  explain  to  a  married  woman  what  she  gets  and  loses  by  her  con- 
sent:  Watson  v.  Marshall,  17  Beav.  308. 

The  Court  has  power  to  postpone  for  a  time  the  transfer  to  the 
husband,  notwithstanding  the  consent  of  the  wife  {WrigJit  v.  Uut- 
ter,  2  Ves.  jun.  073,  677;  Pertfold  v.  Mould,  4  L.  11.  Eq.  565),  and 
she  may  retract  her  consent  at  any  time  before  the  transfer  has 
been  completed:   Tevfold  v.  Mould,  4  L.  li.  Eq.  562. 

It  has  been  held,  however,  that  upon  the  application  of  husband 
and  wife  for  the  payment  of  a  life  annuity  given  to  her  by  will,  her 
consent  was  unnecessary:  Shilleto    v.  Collett,  7  Jur.  N.  S.  385. 

Where  the  wife  waives  her  equity  to  a  settlement,  and  consents 
to  her  husband  having  her  property,  an  affidavit  must  be  made  by 
the  husband  and  wife,  either  that  there  was  no  settlement  upon 
their  marriage,  or  if  there  was  a  settlement,  it  should  be  produced, 
and  an  affidavit  made  by  the  husband  and  wife  that  there  was  no 
other  settlement,  and  the  Court  must  be  satisfied  on  the  certificate 
of  counsel,  that  the  settlement  itself  does  not  affect  the  property 
which  the  wife  consents  to  her  hiisband  having:  Britten  v.  Britten, 
9  Beav.  143,  and  note,  and  the  forms  of  affidavits  there  given,  l^e 
also  Rose  v.  Rolls,  1  Beav.  270.  The  affidavit  of  the  wife  alone 
has  been  allowed  where  the  husband  is  residing  permanentlv 
abroad  (  Wilkinson  v.  Schneider,d  L.  E.  Eq.  423;  Elliott  v.  Reming- 
ton, 9  Sim.  502)  or  refuses  to  make  an  affidavit:  Anon.,  3  Jur.  N. 
S.  839. 

And  where  the  husband  and  wife  are  both  resident  abroad,  the 
Court  has  accepted  as  evidence  that  there  was  no  settlement  on 
their  marriage,  an  affidavit  by  a  solicitor  disclosing  facts,  which 
made  it  unlikely  that  there  was  a  settlement,  and  stating  positively 
that  he  had  been  told  by  the  lady  and  her  husband  that  there  was 
none:   Woodivard  v.  Pratt,  10  L.  R.  Eq.  127. 

Even  where  it  is  proposed  to  pay  the  fund  to  the  wife,  with  the 
husband's  consent  on  her  separate  receipt,  or  to  her  trustees,  her 
examination  will  not  be  dispensed  with  [Mawe-v.  Heaviside,  7  Jur. 
N.  S.  817;  Gibbonsv.  Kibbey,  10  W.  R.  (Y.-C.  K.)  55),  unless  the 
wife  is  entitled  to  the  fund  to  her  separate  use,  in  which  case  her 
examination  and  consent  are  unnecessary  (Macq.  H.  &  W.  331,  2nd. 
Ed.),  and  on  her  petition  with  a  next  fi'iend  payment  would  be 
made  on  her  receipt  alone.  An  affidavit,  however,  that  there  is  no 
settlement  thereof  must  be  produced:  Ano7i.,  3  Jur.  N.  S.  839. 
In  one  case,  however,  a  transfer  of  such  a  fund  was  made 
into  the  joint  *names  of  the  husband  and  wife  without  her  [  *  52(5  ] 
examination,  and  consent  in  their  joint  petition;  Re  Crump, 

575 


*  537  MURRAY  V.  LORD  ELIBANK. 

34  Beav.  57G.     And  in  another  case,  her  consent  to  the  transfer  of 
a  fund  in  Court,  her  separate  property,  to  her  husband,  was  re- 
quired, though  she  had  joined  him  in  a  petition  for  the   purpose:    ' 
Wordsivorth  v.  Dayrell,  4  W.  R.  G89. 

And  payment  will  be  made  to  a  married  woman  suing  as  a  feme 
sole  under  a  protection  order  of  her  share  in  an  administration  suit, 
upon  her  affidavit,  that  the  separation  continued,  and  that  there 
was  no  settlement  nor  agreement  for  a  settlement:  Eivartx.  Chubby 
20  L.  R.  Eq.  454. 

Where  the  wife  is  domiciled  in  a  foreign  state,  upon  proof  that 
by  the  laws  of  such  state  her  husband  would  be  entitled  to  the  whole 
oE  the  property,  without  making  any  provision  for  her,  the  consent 
of  the  wife  will  not  bo  required  by  the  Court,  and  the  fund  will  be 
ordered  to  be  paid  to  the  husband,  without  his  being  required  to 
make  anv  settlement  upon  her  Saicyerx.  SImte,  1  Anst.  63;  Camp- 
bell y.  French,  3  Ves.  323;  Dues  v.  Smith,  Jac.  544;  Anstruther  v. 
Adair,  2  My.  &  K.  513;  In  re  Mobjneux  Minors,  5  Ir.  Ch.  Rep.  346; 
M'Cormick  v.  Garnett,  5  De  G.  Mac.  &  G.  278;  In  re  Letts'  Trusts, 
7  L.  R.  Ir.  132);  or  if  the  property  of  the  wife  was  money  to  arise 
from  the  sale  of  the  land,  the  husband  (not  being  an  alien)  elect- 
ing to  take  it  in  an  unconverted  state  might  have  a  conveyance  of 
itlo  himself  in  fee  (Hitchcock  v.  Clendinen,  12  Beav.  534),  and 
semble  an  alien  might  now  do  so  under  the  Naturalization  Act, 
1870  (33  &  34  Vict.  c.  14),  amended  by  33  &  34  Vict.  e.  102,  35  & 
36  Vict.  c.  39. 

But  where  the  lady  is  a  ward  of  the  Court,  although  by  the  law 
of  the  country  where  her  husband  is  domiciled  she  has  no  equity  to 
a  settlement,"^ the  Court  will  not  part  with  funds  belonging  to  her 
-unless  satisfied  that  a  proper  provision  has  been  made  upon  her: 
In  re  TiveedaWs  Settlement,  Johns.  109. 

It  seems,  however,  that  the  Court  has  a  discretion  in  such  a  mat- 
ter, thus  in  a  case  where,  the  infant  was  not  and  never  had  been 
domiciled  here,  and  the  only  circumstance  rendering  it  possible  to 
treat  her  as  a  ward  of  Court,  was  the  fact  that  money  had  been 
paid  to  her  account  in  the  Court  of  Chancery,  the  Court  ordered  the 
money  to  be  paid  to  her  husband  a  domiciled  Frenchman:  Brown 
V.  Collins,  25  Ch.  D.  56;  and  see  Hope  v.  Hope,  4:I>e  G.  Mac.  &  G. 
328,  345. 

The  proof  of  the  law  in  foreign  states  in  such  cases  being  one  of 
fact,  it  will  not  be  decided  by  authority,  but  by  the  evidence  in  each 
case:     M'Cormick  v.  Garnet,  5  De  G.  Mac.  &  G.  278. 

Where  it  was  sought  to  have  funds  belonging  to  a 
[  *  527  ]  domiciled  ^Scotch  feme  covert  paid  out  of  Court,  and  a 
Scotch  settlement  was  in  existence,  the  Court  required  the 
testimony  of  a  Scotch  advocate,  to  show  that  it  did  not  affect  the 
fund,  not  being  satisfied  with  the  affidavit  of  a  gentleman  describing 
himself  as  a  "solicitor  practising  in  the  Supreme  Courts  of  Scotland, 
Edinburgh :"  In  re  Todd,  19  Beav.  582. 
576 


MURRAY   y.  LORD  ELIBAXK.  *  528 

Where  the  fund  is  under  200Z.  or  lOZ.  a  year,  or  is  likely  io  1m< 
reduced  below  that  sum  by  costs,  it  may  Ijb  ordinarily  paid  to  the 
husband  without  the  consent  of  the  wife  being  taken  l)y  examina- 
tion, but  under  special  circumstances,  as  for  instance,  where  she 
married  the  day  after  she  came  of  age,  the  Court  insisted  upon  her 
separate  examination:  White  v.  Herrick,A  L.  R.  Ch.  App.  345. 
But  before  payment  it  must  be  shown  that  it  is  not  in  settlement: 
Elworthij  V.  Wickstead,  1  J.  &  "\V.  Oij;  Hedges  v.  Clarke,  1  De  Gex 
&  S.  854-,  Iloberts  v.  Collett,  1  Sm.  &  G.  188.  An  affidavit,  how- 
ever, as  to  there  being  no  settlement,  has  been  dispensed  with  where 
the  fund  to  which  the  married  woman  was  entitled  was  very  small. 
See  Veal  v.  Veal,  4  L.  11.  Eq.  115,  where  it  was  only  ten  pounds. 

It  seems  now  to  be  the  usual  practice,  where  the  husband  con- 
sents to  payment  to  his  wife  on  her  own  separate  receipt,  to  dis- 
pense with  her  separate  examination  where  the  sum  does  not  ex- 
ceed 500/.:  Re  Morton's  Estate,\\.  R.  1874,  181. 

In  Ireland,  it  seems  money  in  Court  belonging  to  the  wife,  not 
exceeding  100/.,  may  be  paid  to  her  husband  without  her  consent: 
In  re  Surridge's  Trust.<i,  17  I.  Ch.  108. 

It  was  at  one  time  thought  that  the  wife  was  not  entitled  to  a  set- 
tlement, where  the  fund  was  under  200/.  {Foden  v.  Finney,  4  Russ. 
128);  it  has,  however,  since  been  held  that  the  wife,  although  her 
consent  may  not  be  requisite  before  payment  of  a  sum  under  that 
amount  to  her  husband,  is  as  much  entitled  to  a  settlement  out  of 
a  small  Jis  out  of  a  large  sum.  See  In  re  Cutler,  14  Beav.  220;  In 
re  Kincaid  Trusts,  1  Drew.  820. 

Except  in  some  cases  under  Malins'  Act  (20  &  21  Yict.  c.  57),  a 
married  woman  cannot  waive  her  right  to  take  her  reversionary 
personal  property  by  survivorship  [Oshorn  v.  Morgan,  9  Hare,  432, 
434;  and  see  In  re  Godfrey's  Trusts,  1  I.  R.  Eq.  531;  Whittle  v. 
Henning,  2  Ph.  731):  whether  it  might  possibly  vest  in  possession 
during  the  coverture,  or  could  only  vest  after  the  husband's  death: 
Box  v.  Box,  2  C.  &  L.  005;  Box  v.  Jackson,  Dru.  Ca.  t  Sugd.  42; 
where  all  the  authorities  on  the  subject  are  reviewed.  ■ 

Nor  would  the  Court  allow  the  interest  of  the  vrife  to  be  accele- 
rated, to  enable  her  to  dispose  of  it  as  if  in  possession: 
Purdew  \.  Jackson,   1   Russ.   1;  Cressivell  \.  *  Dewell,  4  [  *  528  ] 
Giff.  460;  see  note  to  Ryall  v.    Roicles,  post,  vol.  2,  as  to 
the  limited  operation  of  Malins'  Act  (20  &  21  Vict.  c.  57)  see  lb. 

An  infant  feme  covert  cannot  give  her  consent  to  payment  to  her 
husband.  See  Stubbs  v.  Sargon,  2  Beav.  596;  Abraliam  v.  New- 
combe,  12  Sim.  566;  Shipway  v.  Ball,  16  Ch.  D.  376;  overruling 
Gullin  v.  Gullin,  7  Sim.  236. 

A  female  ward  of  tlie  Court,  married  without  its  authority,  or  in 
contempt  of  it,  will  not  bo  allowed  to  waive  her  right  to  a  settle- 
ment out  of  her  own  property  (Stackpole  v.  Beaumont,  3  Vos.  89; 
Gynn  v.  Gilbard,  1  Dr.  &  S.  356);  and  the  settlement  will  in  gen- 
eral be  much  less  in  favour  of  the  husband  than  in  ordinary   cases, 

37   WHITK   ox    KQUITY.  577 


*  529  MURRAY  V.  LORD  ELIBANK. 

as  the  Court  will  attend  principally  to  the  interest  of  the  wife,  and 
her  children,  by  that  or  any  subsequent  marriage  (Stevens  v.  Savage, 
1  Yes.  jun.  154;  Ghassaing  v.  Parsonage,  5  Ves.  15;  Millet  v.  Rowse, 
7  Ves.  419;  Bathurst  v.  Murray,  8  Ves.  74;  Wells  v.  Price,  5  Ves. 
398;  Winch  v.  James,  4  Ves.  386;  Priestley  v.  Lamb,  6  Ves.  421; 
Halsey  v.  Halsey,  9  Ves.  471;  Pearce  v.  Crutchfield,  16  Ves.  48;  J?i 
re  Healey,  1  C.  &  L.  393;  /?i  re  Anne  Walker,  L.  &  G.  t.  Sugd.  325; 
Hodgens  v.  Hodgens,  11  Bligh,  N.  S.  62;  4  C.  &  F.  323;  Birkett  v. 
Hibbert,  3  My.  &  K.  227);  especially  when  a  man  of  no  fortune 
marries  a  ward  without  the  leave  of  the  Court,  with  the  sole  object 
of  getting  possession  of  her  property.  See  Like  v.  Beresford,  3 
Ves.  506;  Ball  v.  Coutts,  1  V.  &  B.  303. 

In  a  recent  case  where  an  infant  ward  of  the  Court  married  with 
the  consent  of  her  mother,  but  without  any  application  to  the  Court, 
Malins,  V.-C,  refused  to  take  her  consent  while  a  minor,  but  made 
an  order  for  payment  of  the  dividends  of  a  fund  in  Court  to  her 
separate  use,  until  further  order  (Shipivay  v.  Ball,  16  Ch.  D.  376;) 
and  in  another  case  a  ward  of  the  Court,  who  married  without  its 
leave,  though  with  the  consent  of  her  guardian,  was  allowed,  on 
■"oming  of  age,  to  consent  to  her  husband  having  her  property  with- 
out his  making  a  settlement  on  her:  Bennett  v.  Biddies,  10  Jur.  534. 

But  the  Court  has  no  power  over  the  property  of  an  infant  not 
being  a  ivard  of  the  Court,  either  under  its  general  jurisdiction,  or 
under  the  Infants'  Settlement  Act  ( 18  &  19  Vict.  c.  43);  and  cannot 
therefore,  after  her  marriage  direct  a  settlement  thereof  to  be  made 
against  her  consent:  In  re  Potter,  7  L.  R.  Eq.  484. 

6.  What  ivill  defeat  or  bar  the  icife^s  equity  to  a  settlement] — 
The  receipt  by  the  husband  or  his  assignees  of  the  rents  and  profits 
of  his  wife,  or  a  transfer  to  him  of  any  fund   belonging  to  her,  or 

his  reduction  into  possession  of  her  choses  in  action  will 
[  *  529  ]  defeat  the  *  wife's  right  to  a  settlement  thereout;  and,  as 

laid  down  by  Lord  Eldon,  in  the  principal  case,  "  previ- 
ously to  a  bill,  a  trustee,  who  has  the  wife's  property,  real  or  per- 
sonal, may  pay  the  rents  and  profits,  and  may  hand  over  the  per- 
sonal estate  to  the  husband,  but  not  if  the  bill  has  been  filed;  and 
if  the  husband  or  those  claiming  under  him,  can  obtain  the  prop- 
erty of  the  wife  by  an  action  at  law,  equity  will  not  by  injunction 
prevent  them  from  doing  so."  See  also  Milner  v.  Wilnier,  2  P. 
Wms.  641;  Jeiuson  v.  Moulson,  2  Atk.  420;  Alldayx.  Fletcher,  1  Be 
G.  &  Jo.  82;  Re  Swan,  2  Hem.  &  M.  34,  37.  See  note  to  Hornsby 
V.  Lee,  vol.  ii.  post.  But  after  a  bill  has  been  filed,  trustees  could 
not  safely  make  any  payments  to  the  husband:  Macauleyw.  Philips, 
4  Ves.  18;  De  la  Garde  v.  Lempriere,  6  Beav.  344,  347. 

But  injunctions,  in  many  instances,  have  been  granted  to  restrain 
the  husband  from  proceeding  in  the  Ecclesiastical  Court  for  a  legacy 
due  to  his  wife,  until  he  had  agreed  to  make  a  reasonable  provision 

578 


MURRAY  V.  LOKO  KLIBANK.  *  530 

for  her:    Jeivson  v.  MouLson,  2  Atk.  120;   Gardner  y.  Walker,  1  Stra. 
503;  EUbanlc  v.  MontoUea,  10  Ves.  <J0. 

iSuits,  however,  for  legacies  in  the  ecclesiastical  courts,  in  conse- 
quence of  their  not  havinj^  jurisdiction  to  afford  complete  relief  in 
most  cases,  have  become  practically  obsolete,  nor  does  the  Pr(jl)ate 
Division  under  the  Supreme  Court  of  Judicature  Act,  1873  (30  & 
37  Vict.  c.  06),  fi.  34,  exercise  any  of  the  jurisdiction,  which  the 
ecclesiastical  courts  had  previously  ceased  to  exercise,  but  by  subs. 
5  of  the  34th  section  of  that  Act,  an  injunction  can  no  lontrer  be 
ijrauted  to  stay  a  course  of  proceeding  in  the  High  Court  of 
Justice. 

Where  a  woman  at  the  time  of  her  marriage  owes  more  than  the 
whole  amount  of  her  property,  she  will  have  no  equity  to  a  settle- 
ment out  of  it  as  against  the  assignees  of  her  husband,  in  whoso 
bankruptcy  her  debts  are  proved:     Bonner  v.  Bonner,  17  Beav.  80. 

But  if  the  value  of  her  property  exceeds  the  amount  of  the  deljts 
she  owed  before  marriage,  she  may  be  held  entitled  to  a  settlement 
out  of  the  property,  after  provision  has  been  made  for  ])ayment  of 
the  debts:  Barnard  v.  Ford,  4  L.  K  Ch.  App.  247:  Miller  v.  ( 'amp- 
bell,  W.  N.  1871,  p.  210. 

The  wife's  equity  to  a  settlement  will  be  barred  by  an  adequate 
settlement  having  been  made  upon  her,  but  not  by  an  inadetjuate 
settlement,  unless  it  be  by  an  express  stipulation  before  marriage. 
(Salivey  v.  Sahvey,  Amb.  602;  Garforth  v.  Bradley,  2  Ves.  075; 
Spirett  v.  Willows,  5  Giff.  49;  1  L.  R.  Ch.  App.  520.)  And  in  a 
recent  case,  where  an  adequate  settlement  had  been-made 
upon  the  wife,  the  husband  was  *held  to  be  entitled  to  the  [  *  530  J 
whole  fund,  although  he  was  living  apart  from  his  wife, 
they  having  separated  by  mutual  consent  and  agreement,  and  no 
blame  being  imputed  to  one  party  more  than  the  other  {In  re  Er- 
skine^s  Trusts,  1  K.  &  J.  302;  Sjncer  v.  Spicer,  24  Beav.  365).  And 
it  is  not  essential  that  the  settlement  shall  have  been  made  by  the 
husband:     Giacometti  v.  Prodgers,  8  L.  R.  Ch.  App.  338. 

The  wife's  equity  to  a  settlement,  moreover,  may  be  excluded  bv  an 
exception  of  the  particular  fund  or  property  from  the  husband's 
covenant  in  her  marriage  settlement  to  settle  future  acquired  ])rop- 
erty:     J^rooke  v.  Hickes,  12  W.  R.  703. 

A  married  woman  may,  by  fraud,  as  for  instance,  in  holding  out  to 
a  purchaser  for  value,  that  an  assignment  made  after  marriage  was 
made  before,  preclude  herself  from  claiming  her  equity  to  a  settle- 
ment, as  against  the  purchaser.  In  re  Lus/is  Trust,  4  L.  R.  Ch. 
App.  591;  Barroivw.  Manning,  W.  N.  J  878,  p   122. 

If  the  wife  be  living  in  adultery,  apart  from  her  husband,  she  can- 
not, except  under  very  peculiar  circumstances  (In  re  Lew  in' s  Trust, 
20  Beav.  378),  insist  upon  her  equity  to  a  settlement  (  Carr  v.  East- 
brooke,  4  Ves.  146);  but  even  then  it  seems  the  husband  will  not  be 
allowed  to  receive  the  whole  of  her  property,  while  he  does  not  main- 
tain her.     See  Ball  v.  Montgomery,  2  Ves.   jun.  191,  jn  which  ease 

579 


*  531  MURRAY  V.  LORD  ELIBANK, 

Lord  Loughborough  ordered  the  future  dividends  of  the  furd  to  be 
paid  into  Court,  subject  to  further  order;  observing  that  the  wife's 
delinquency  was  a  ^ood  ground  for  not  paying  it  to  her,  but  was  not 
a  ground  for  letting  the  husband  receive  the  whole  of  the  property, 
which,  being  heirs  originally,  was  intended  to  be  his,  partly  to  sup- 
port her. 

AVhere  both  husband  and  wife  are  living  in  adultery,  it  has  been 
held  that  the  wife  may  claim  a  settlement:  -Greedy  v.  Lavender,  13 
Beav.  62. 

A  female  ward  of  Court,  married  without  its  consent,  will  not  be 
barred  from  her  claim  to  a  settlement,  although  she  should  be  liv- 
ing in  adultery:  Ball  v.  Coutts,  1  V.  &  B.  802,  304;  In  re  Anne 
Walker,  L.  &  G.  t.  Sugd.  299. 

7.  Wife,  tohen  allowed  maintenance  by  Court  out  of  her  equitable 
27roperty  on  refusal  of  the  husband  to  make  a  settlement.'] — If  the 
husband  refuse  to  make  a  settlement  upon  his  wife,  the  Court  will 
not  go  so  far  as  to  do  anything  in  diminution  of  his  legal  rights,  so 
as  to  take  away  the  produce  of  his  wife's  property  from  him,  or  pre 
vent  his  receiving  the  interest,  so  long  as  he  is  willing  to  live  with 
and  maintain  her,  and  there  is  no  reason  for  their  being  apart. 
The  Court,  however,  will  retain  the  capital,  so  as  to  give 
[  *  531]  the  wife  a  chance  of  taking  it  by  surviving  *her  husband: 
Sleech  v.  Thorrington,  2  Ves.  562.  And  see  Oxenden  v. 
Oxenden,  2  Ves.  493;   Williams  v.  Calloiv,  Vern.  751. 

This  course,-it  seems,  will  be  adopted  where  a  husband  and  wife 
are  entitled  to  a  fund  as  tenants  by  entireties:  see  Atcheson  v. 
Atcheson,  11  Beav.  485,  where  a  husband  and  wife  being  entitled  to 
a  legacy  as  tenants  by  entireties,  Lord  Langdale,  M.  R.,  upon  the 
wife  claiming  a  settlement  out  of  the  whole  fund,  ordered  the 
legacy  to  be  carried  over  to  the  joint  account  of  the  husband  and 
wife;  with  a  direction  to  pay  the  dividends  to  the  husband  during 
their  joint  lives,  with  liberty,  on  the  death  of  either,  for  the  sur- 
vivor to  apply.  See,  also.  Attorney -General  v.  Bacchus,  9  Price, 
'30;  11  Price,  547;  Edtje  v.  Addison,  1  H.  &  M.  781;  JVardx.  Ward, 
14  Ch.  D.  506;  Li  re  Bryan,  14  Ch.  D.  516. 

But  it  seems  that,  if  a  fund,  to  which  the  husband  and  wife  are 
entitled  as  tenants  by  entireties,  as  in  the  case  of  the  legacy  in 
Atcheson  v.  Atcheson,  be  not  brought  under  the  consideration  of  the 
Court,  payment  to  the  husband,  in  the  lifetime  of  the  wife,  would 
be  a  good  payment.  Per  Lord  Langdale,  M.  R.,  in  Atcheson  v. 
Atcheson,  11  Beav.  491;  and  see  Grute  v.  Locroft,  Cro.  Eliz.  287. 

The  principle  of  unity  of  person  according  to  which  a  husband 
and  wife  took  as  tenants  by  entireties,  has  not  been  altered  by  the 
Married  Women's  Property  Act,  1882  (45  &  46  Vict.  c.  75),  sect.  1, 
sub- sects.  (1)  (2),  and  sect.  12;  as  to  wills  made  before  though 
the  testator  died  after  the  Act,  although  the  wife  will,  in  such  case, 
under  the  Act,  take  a  moiety  of  that  which  she  and  her  husband 
580 


MURRAY  V.  LORD  KLIBANK.  *  532 

take  as  tenants  l)y  entireties  us  bor  separate  property.  Thus,  ia  In 
re  March,  Mander  v.  Harris,  27  Ch.  D.  100,  on  a  bequest  by  will 
(dated  before  but  coming  into  operation  after  the  coiuujencetnent 
of  the  Act),  to  A.  and  K  and  C,  his  wife,  it  was  held  by  the  C<jurt 
of  Appeal,  reversing  the  decision  of  Cfiitty,  J.,  (reported  24  Ch.  1). 
222),  that  B.  and  C.  were  entitled  to  one  moiety  only  as  tenants  by 
entireties,  (C.  taking  one-half  thereof  to  her  separate  use),  and  not 
to  one-third  of  the  whole  fund  each  as  was  held  by  L'liitty,  J.,  but 
the  Court  did  not  decide  how  it  would  have  construed  the  bequest 
had  the  will  been  made  after  the  Act  came  into  operation. 

Where  the  husband  was  a  lunatic,  not  found  so  by  inquisition, 
and  the  fund  was  small,  the  dividends  were  ordered  to  be  paid  to 
the  wife:  Stead  v.  Galley,  2  My.  &  K.  52. 

In  Bond  v.  Simnionds,  3  Atk.  21,  Lord  Hardicicke  went  so  far  as 
to  say,  that,  where  a  husband  has  received  a  good  part  of  the  wife's 
portion,  and  only  a  small  part  remains,  and  the  husband 
is  so  perverse  that  he  will  not  *  make  a  competent  settle-  [  *  532  J 
ment  on  the  wife,  the  Court  will  not  only  stop  the  pay- 
ment of  the  residue  of  her  fortune  to  the  husband,  but  will  even 
prevent  his  receiving  the  interest  of  that  residue,  that  it  may  ac- 
cumulate for  the  benefit  of  the  wife,  unless  he  is  starving  for  want 
of  maintenance. 

Where,  however,  the  husband  deserts  the  wife,  and  leaves  her 
unprovided  for,  the  Court  will  direct  the  payment  of  the  interest  of 
the  wife's  property  to  her,  until  the  husband  returns  and  maintains 
her  as  he  ought  to  do  :  Wafkins  v.  Watkins,  2  Atk.  'JO  ;  Sleech  v. 
ThorringUm,  2  Ves.  502  ;  Peters  v.  Grote,  7  Sim.  238  ;  Rishton  v. 
Cobb,  9  Sim.  620. 

It  has  been  before  shown,  that,  according  to  the  decisions  of  the 
Court,  although  a  married  woman,  as  against  the  assignees  of  her 
husband  in  bankruptcy  or  insolvency,  is  entitled  to  have  a  settle- 
ment or  maintenance  out  of  her  equitable  property,  in  which  she 
has  only  a  life  \ni(?re^i  (Lumb  v.  Mildes,  b  Ves.  517;  Brown  v. 
Clark,  3  Ves.  106  ;  Jacobs  v.  Amyalf,  1  Madd.  376,  n.  :  Sturgi.^  v. 
Champneys,  5  My.  &Cr.  97;  Vanghan  v.  Buck,  13  Sim.  404;  Koebrr 
V.  Sturgis,  22  Beav.  588  ;  Squires  v.  Ashford,  23  Beav.  132),  she, 
nevertheless,  cannot  claim  either,  as  against  the  legal  right  cf  her 
husband,  not  being  bankrupt  or  insolvent,  although  he  may  be  in 
difficulties,  (for  the  husband  is  entitled  to  the  wife's  income  as  long 
as  he  maintains  her  to  the  best  of  his  ability,  and  they  are  living 
together)  :  Vanghan  v.  Buck,  13  Sim.  404.  Nor  can  she  claim  a 
settlement  or  maintenance  out  of  the  income  of  her  equitable  pro- 
perty, as  against  the  particular  assignee  for  value  of  her  husband, 
although  subsequently  to  the  assignment  he  may  become  bankrupt 
or  insolvent,  or  desert  and  leave  her  utterly  destitute  (  Tidd  v.  Lister, 
3  De  Gex,  Mac.  &  G.  857,  ante,  p.  514) ;  but  if  the  husband  deserts 
the  wife,  leaving  her  unprovided  for,  the  Court  will  allow  her  past 
and  future  maintenance  out  of  the  income  of  her  life  interest  in 

581 


*  533  MURRAY  V.  LORD  ELIBANK. 

equitable  property,  not  specifically  assigned  by  the  husband  for 
value  :  Wright  v.  Morley,  11  Ves.  12,  23  ;  Gilchrist  v.  Cator,  1  De 
Gex  &  Sm.  188;  Allerton  v.  Knowell,  cited  4  Ves.  799;  S.  C,  nom. 
Atherton  v.  KnoiveU,  1  Cox.  229  ;  Coster  v.  Coster,  1  Keen,  199. 
And  -where  a  person  made  pecuniary  advances  to  a  married  woman, 
deserted  by  her  husband,  on  the  credit  of  a  fund  in  Court — her 
property,  for  her  maintenance,  exceeding  the  amount  of  the  income, 
he  was  reimbursed  out  of  the  capital:  Guy  v.  Pearkes,  18  Ves.  195: 
and  see  Re  Ford,  32  Beav.  621. 

And  a  husband  who  has  deserted  his  wife  and  ceased  to  maintain 
her,  although  he  received  the  income  of  her  pi'operty  vested  in 
trustees,  has  been  compelled  in  equity  personally  to 
[  *  533  ]  *  repay  the  person  who  advanced  moneys  to  her  for,  and 
which  were  actually  applied  by  her  in  the  purchase  of, 
necessaries:  Deare  v.  Soutten,  9  L.  K.  Eq.  151  ;  Jenner  v.  Morris, 
1  Dr.  &  Sm.  218;  3  De  G.  F.  &  J.  45,  overruling  May  v.  Skey,  16 
Sim.  588  ;  and  see  Harris  v.  Lee,  1  P.  Wms.  482  ;  Hutchinson  v. 
Standley,  9  L.  E.  Eq.  152,  cited. 

And  the  Court  will  not  allow  the  right  of  a  wife  for  maintenance 
to  be  defeated  by  her  husband  making  a  fraudulent  conveyance  of 
her  property  to  trustees  for  payment  of  his  debts:  Coliner  v.  Calmer, 
Mos.  113,  118. 

In  order  to  favour  as  far  as  possible  all  efforts  towards  reconcilia- 
tion on  the  husband's  part,  notwithstanding  a  decree  has  been  made 
allowing  the  wife  a  separate  maintenance,  upon  his  consenting  to  co- 
habit with  her,  and  promising  to  use  her  kindly,  the  Court  has  re- 
fused to  continue  the  separate  maintenance:  per  Tiovd  Hardwicke  in 
Head  v.  Head,  3  Atk.  296;  and  see  Gilchrist  v.  Cator,  1  De  G.  & 
Sm.  188. 

A  woman  cannot  represent  herself  as  deserted  when  her  husband 
leaves  her  in  the  course  of  his  duty,  and  she  refuses  to  accompany 
him.  See  Bullock  v.  Menzies,  4  Ves.  798,  in  which  case  the  husband 
was  an  officer  in  a  marching  regiment. 

However,  when  the  cruelty  or  improper  conduct  of  the  husband 
renders  her  leaving  him  necessary  or  justifiable,  and  there  is  no  im- 
propriety on  her  part,  the  Court  will  hold  her  entitled  to  mainte- 
nance or  a  settlement.  See  Oxenden\.  Oxenden,  2  Vern.  493;  Wil- 
liams V.  Callow,  2  Vern.  752;  Atherton  v.  Knowell,  1  Cox,  229;  Eedes 
V.  Eedes,  11  Sim.  569.  And  where  the  husband  has  so  conducted 
himsplf  that  the  wife  cannot  live  with  him,  as,  for  instance,  where 
she  has  obtained  against  him  a  divorce  upon  the  ground  of  cruelty 
and  adultery,  especially  if  it  appears  that  he  married  her  from  merely 
interested  motives,  and  is  not  maintaining  her,  the  Court  may  give 
to  the  wife  the  income  of  the  whole  of  her  property,  although  the 
husband  may  have  received  nothing  from  her  on  her  marriage:  Bar- 
rotv  V.  Barrow,  5  De  G.  Mac.  &  G.  782. 

But  the  Court  will  not  give  the  wife  maintenance  out  of  property 
given  to  her  for  life,  if  she  has  already  an  adequate  provision  for 
582 


MURRAY  V.  LORD  ELIBANK.  *  534 

her  separate  use,  although  the  husband  has  taken  the  benefit  of  the 
Insolvent  Debtors'  Act:   Aguilarv.  A<juilar,  5  Madd.  414. 

AVhere  the  wife  has  eloped  and  lives  in  adultery,  hlie  will  not  be 
allowed  maintenance  out  of  the  income  of  property  to  which  she  is 
entitled  for  life,  although  the  husband  will  not  be  all(jwed  the  in- 
come, in  the  hope,  as  expressed  by  the  Coiui  in  a  well- 
known  case,  *  "  that  the  situation  of  the  case  will  prol)ably  [  *  584  J 
produce  some  agreement  for  her  future  support."  See  Ball 
V.  Montgomery,  2  Ves.  jun.  191;  Alexander  v.  M^Culloch  (cited  2 
Ve.s.  jun.  192). 

Where,  however,  the  husband  is  by  express  contract  entitled  to  an 
interest  during  their  joint  lives  in  the  property  of  his  wife,  and  he 
is  obliged  to  separate  himself  from  her  in  consequence  of  her  mis- 
conduct, his  rights  will  not  be  thereby  affected:  Duncan  v.  Campbell, 
12  Sim.  010. 

8.  As  against  whom  the  equity  of  a  wife  to  a  settlement  is  bind- 
ing.]— The  equity  of  a  wife  to  a  settlement  is  binding  not  only  upon 
her  husband,  but  also  upon  his  trustees  in  bankiniptcy,  or  under  a 
general  assignment  for  the  payment  of  his  debts:  Jewsonv.  Moidson, 
2  Atk.  420;  Burden  v.  Dean,  2  Ves.  jun.  007,  Prijorv.  Hill,  4  Bro.  C. 
C.  138,  and  notes  by  Belt;  Osirell  v.  Probert,  2  Yes.  jun.  080;  >Sturgis 
v.  Champneys,  5  My.  &  Cr.  97. 

[Perry  on  Trusts,  Sec.  032;  Gassett  v.  Grout,  4  Met.  480;  Havi- 
land  V.  Mvers,  0  Johns.  Ch.  25;  Crook  v.  Turpin,  10  B.  Mon.  244; 
Perrycleai-  v.  Jacobs,  2  Hill's  Ch.  504;  Page  v.  Estes,  19  Pick.  209.] 

It  is  also  binding  upon  the  assignee  of  the  husband  for  valuable 
consideration:  Macaulay  v.  Philips, -iYes.  19;  see  also  Scott  \.  Spa- 
shatt,  3  Mac.  &  G.  599;  Marshall  v.  Gibbons,  4  Ir.  Ch.  Rep.  270,  sub- 
ject to  the  somewhat  anomalous  exception  in  the  case  of  an  equitable 
life  interest  of  the  wife  which  has  been  already  noticed,  pp.  514,  532, 
ante. 

The  wife's  equity  to  a  settlement  is  moreover  paramount  to  the 
right  which  an  executor  or  administrator  has  to  set  ofl'a  debt  due  to 
the  estate  from  a  husband,  against  any  legacy  under  the  will  or  j-hare 
under  the  intestacy  to  which  his  wife  is  entitled.  See  HaUv.  Hill, 
1  Dru.  &  War.  109.  If,  for  instance,  the  wife  is  entitled  to  have  the 
whole  fund  settled  upon  her,  then  the  right  to  set  off  or  retainer  will 
be  completely  barred;  if  she  has  only  a  right  to  have  part  of  the 
fund  settled,  the  right  of  retainer  or  sot  off  will  be  to  that  extent 
barred.  See  Carrx.  Taylor,  10  Yes.  574;  E.v parte  Blagden,  2  Rose, 
294;  E.r parte  O'Ferrall,  1  G.  &  J.  347;  M'Mahon  v.  Bnrchell,  3  Hare, 
97,5  Hare,  325;  Reeve  w  Rocher,  1  De  G.  &  Sm.  020;  Lee  v.  Egre- 
niont,  oDeG.  &  Sm.  348;  M^Cormick  v.  Garnett,  2  Sm.  ct  Giff.  37: 
In  re  Cordweirs  Estate,  20  L.  E.  Eq.  044.  It  is  presumed  that  Lord 
Loughborough,  when  he  ob.served  in  the  principal  case  (p.  492,  ante), 
"That  if  the  plaintiff  had  any  equity  against  her  husband  with  re- 
gard to  the  money,  that  equity  would  clearly  bar  any  right  of  re- 

583 


*  535  MURRAY  V.  LORD  ELIBANK. 

tainer  that  the  administrator  could  set  up,"  merely  meant,  that  the 
bar  to  the  right  of  retainer  was  co-extensive  with  the  wife's  equity. 

It  is  clear  that  where  the  Court  directs  a  settlement  to  be  made 
upon  the  wife,  "  the  Court  will  support  it  as  a  good  settle- 
[  *  535  ]   ment,  for  valuable  consideration."     See  *  Wheeler  v.  Caryl, 
Amb.  121;  Simson  v.  Jones,  2  Russ  &  My.  365. 

The  Court,  moreover,  has  gone  further;  if  after  marriage,  the 
wife  being  entitled  to  such  a  portion  which  the  husband  cannot 
touch  without  the  aid  of  the  Court,  and  the  trustees  will  not  pay 
it  without  the  husband  making  a  settlement;  if  the  husband  does 
ao-ree  to  it,  and  do  that  which  the  Court  would  decree,  it  is  a  good 
settlement  as  against  his  creditors.  Per  Lord  Hardwicke,  C,  in 
Wheeler  v.  Caryl,  Amb.   191,  122;  Moor  v.  Rycault,   Prec.  Ch.  22. 

So  a  legacy  due  to  a  married  woman  may,  with  the  consent  of  her 
husband,  be  paid  to  the  trustees  of  a  settlement  already  in  exist- 
ence, upon  trusts  under  which  the  life  interest  of  the  husband  is 
determinable  on  alienation  or  incumbrance  thereof.  See  Montefiore 
V.  Behrens,  1  L.  R.  Eq.  171.  See  also  Middleconie  v.  Marloiv,  2 
Atk.  519;  In  re  Wray's  Trusts,  16  Jur.  1126. 

Even  if  trustees  in  possession  of  the  property  of  a  married  woman 
should,  on  the  mere  request  of  her  husband,  transfer  it  to  new  trus- 
tees upon  trust  for  her  separate  use,  such  trust  will  be  good  as 
against  his  creditors:  Ryland  v.  Smith,  1  My.  &  Cr.  53. 

But  if  the  husband  has  once  reduced  into  possession  the  equit- 
able choses  in  action  of  his  wife,  any  subsequent  settlement  of 
them  would  not  be  valid  as  against  his  creditors.  See  Ryland  v. 
Smith,  1  My.  &  Cr.  53;  see  also  Wall  v.  Tomlinson,  16  Ves.  413, 
and  Glaister  v.  Hewer,  8  Ves.  207. 

{^Doctrine  of  Wife's  Equity  to  a  Settlement  Restated.— The  wife's 
equity  to  a  settlement  is  believed  to  exist  in  all  of  the  United  States 
with  the  exception  of  North  Carolina  and  New  Hampshire,  and  it 
has  also  been  recognized  in  the  Federal  courts:  Gould  v.  Gould,  16 
Ala.  132;  Gardner  v.  Hooper,  3  Gray,  398;  Wiles  v.  Wiles,  3  Md. 
1;  Chase  v.  Palmer,  25  Me.  342;  Coppedge  v.  Threadgill,  3  Sne^d, 
577;  Lay  v.  Brown,  13  B.  Mon.  295;  Barron  v.  Barron,  24  Vt.  375; 
Durr  V.  Bowyer,  2  McCord's  Ch.  368;  Wilks  v.  Fitzpatrick,  1 
Humph.  54.  In  North  Carolina  see  Lassiteru  Dawson,  2  Dev.  Eq. 
383.  In  New  Hampshire,  Parsons  v.  Parsons,  9  N.  H.  309.  In 
Pennsylvania  it  is  enforced  by  preventing  a  recovery  in  a  legal 
action,  unless  upon  the  terms  of  making  a  suitable  provision  for 
the  wife:  Rees  v.  Waters,  9  Watts,  94;  Perry  on  Trusts,  Sec.  627, 
defines  a  wife's  equity  to  a  settlement  to  be  an  equitable  right  which 
a  married  woman  has  to  a  provision  out  of  her  own  fortune,  before 
her  husband  reduces  it  to  possession. 

The  wife  in  order  to  procure  a  settlement  must  take  steps  to  obtain 
it  before  the  husband  has  obtained  the  actual  possession,  because 
the  courts  will  not  compel  the  husband  Avho  has  possession  of  the 
584 


MURRAY  V.  LORD  KLlIiANK.  *  535 

property,  to  refund  it,  in  order  that  Bcttlement  raay  ho  made,  unless 
he  should  have  obtained  the  posHession  (jf  the  property  l)y  fraud. 

The  wife's  equity  is  paramount  to  all  rii^hts  of  setoff  against  thi' 
husband,  even  if  he  makes  an  assignment  fur  a  valuable  considera- 
tion, the  wife's  equity  will  ])revail  over  it. 

It  will  be  enforced  not  only  against  the  husband,  but  all  persons 
claiming  under  or  through  him,  and  her  right  extends  to  all  her 
property,  whether  legal  or  equitable,  and  to  all  her  interest,  whether 
in  fee  or  for  life,  or  to  a  trust  for  a  term,  or  to  her  interest  as  a 
mortgage,  or  an  equity  of  redemption,  and  to  all  her  interests 
in  chattels  real  or  to  her*contingent  interest.  She  is  also  entitled 
.to  a  settlement  in  estates  that  come  to  her  after  maniage  as  well  as 
before. 

The  equity,  while  called  that  of  the  wife,  is  effectuated  by  a  set- 
tlement on  her  children  also,  and  she  cannot  separate  her  interest 
from  theirs  or  claim  a  settlement  on  herself  to  their  exclusion.  The 
right  of  the  children  is  merely  incidental  to  hers  and  does  not  con- 
stitute an  independent  equity,  and  if  she  dies  without  having  a  de- 
cree of  settlement,  the  husband  will  receive  the  property  and  the 
children  will  have  no  equity  to  enforce  a  settlement. 

The  amount  that  will  be  settled  upon  the  wife  is  subject  to  the 
sound  discretion  of  the  court,  which  acts  upon  all  the  circumstances. 

It  is  also  a  well  settled  doctrine  that  equity  will  lay  its  hands 
on  the  property  of  the  wife,  which  is  within  its  power,  for  the  pur- 
pose of  providing  a  maintenance  for  her  when  she  is  abandoned  by 
her  husband,  or  prevented  from  living  with  him  by  his  ill-treatment. 
In  some  cases  in  the  United  States,  maintenance  in  the  nature  of 
alimony  has  been  decreed  by  courts  of  equity. 

In  the  future  there  will  perhaps  be  little  occasion  to  consider  set- 
tlement in  the  United  States,  since  the  statutes  settle  nearly  all  a 
married  woman's  property  upon  herself,  without  the  intervention 
of  a  trustee.  It  may  happen  that  questions  may  arise  in  relation 
to  marriages  previous  to  the  passage  of  the  acts  in  the  several 
states;  or  the  property  may  come  to  the  wife  in  some  manner  not 
embraced  in  the  statutes,  so  that  the  husband's  common-law  rights 
may  still  extend  to  it:  Richen  v.  White,  43  Barb.  02;  Foster  v. 
Penn.  Ins.  Co.,  34  Pa.  St.  134. 


End  of  Vol.  I.,  Paet  Fiest. 


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